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UNITED STATES OF AMERICA. 



SHAKESPEARE 



AS A 



LAWYER 



BY 




FRANKLIN FISKE HEARD 



V 



NOV 28 188-S ' ) 



0/-' . 






BOSTON 
LITTLE, BROWN, AND COMPANY 

1883 






Entered according to Act of Congress, in the year 1883, 

By Franklin Fiske Heard, 

In the Office of the Librarian of Congress, at Washington. 



©amfcrttJge : 

PRINTED BY JOHN WILSON AND SON, 
UNIVERSITY PRESS. 



I am a wise fellow, and one that knows the law. 

Much Ado About Nothing. Act iv. sc. 2. 



I was once at Clements-inn. 

Second Part of King Henry IV. Act iii. sc. 2. 



Faith, I have been a truant in the law, 
And never yet could frame my will to it. 

First Part of King Henry VI. Act ii. sc. 4. 



But in these nice sharp quillets of the law, 
Good faith, I am no wiser than a daw. 

First Part of King Henry VI. Act ii. sc. 4. 



Thou art clerkly, thou art clerkly. 

The Merry Wives of Windsor. Act iv. sc. 5. 



PREFACE 



I AM aware that the attempt made in this 
volume has been anticipated by others. 
The notes of critics and commentators upon 
Shakespeare, superfluously full in certain 
particulars, are singularly meagre in point- 
ing out and explaining his references to the 
technical science of the Law. And yet the 
room for such reference is abundant. 

In selecting the passages and the illustra- 
tions and criticisms thereon, which will be 
found in the following pages, constant use 
has been made of the various editions of 
Shakespeare. I have not relied upon my 
own complete perusal of his Works. From 



8 



Preface. 



" Eirenarcha," 
1582. 



the wealth of material I have made a copi- 
ous selection. In the language of Lambard, 
" If I shall be thoughte to have heaped up 
too many conceites, I make answere that I 
have omitted manye, and have made the best 
choice that I could. Moreover, I will no lesse 
gladly be admonished of my mistakings, than 
readily reforme them." 

In printing the quotations I have, in gen- 
eral, followed the text of the Third Edition 
of Dyce. 



Boston, October, 1883. 




SHAKESPEARE AS A LAWYER. 



CHAPTER I. 



"ALL that is known with any degree of 
ii certainty concerning Shakespeare, is, 
that he was born at Stratford-upon-Avon ; 
married and had children there ; went to 
London, where he commenced actor, and 
wrote poems and plays ; returned to Strat- 
ford, made his will, died, and was buried." 
The Rev. Alexander Dyce says, " Such is the 
remark made long ago by one of the most 
acute of his commentators ; and even at 
the present day, — notwithstanding some 
additional notices of Shakespeare which have 



Steevens. 



Dyce. 



10 



Shakespeare as a Lawyer. 



been more recently discovered, — the truth 
of the remark can hardly fail to be felt and 
acknowledged by all, except by professed 
antiquaries, with whom the mere mention of 
a name, in whatever kind of document, as- 
sumes the character of an important fact." 

In 1790 Malone — himself a barrister, 
whose services, whether as biographer or 
commentator, have never been adequately 
acknowledged — published his first edition 
of Shakespeare's Works. It was his opinion, 
an opinion subsequently adopted by several 
other critics, that some years of Shake- 
speare's youth were passed in an attorney's 
office. He observes that the Poet's " knowl- 
edge of legal terms is not merely such as 
might be acquired by the casual observation 
of even his all-comprehending mind ; it has 
the appearance of technical skill ; and he is 
so fond of displaying it on all occasions, 
that I suspect he was early initiated in at 
least the forms of law, and was employed, 
while he yet remained at Stratford, in the 
office of some country attorney, who was 



Shakespeare as a Lawyer, 



at the same time a petty conveyancer, and 
perhaps also the seneschal of some manor 
court." There can be no doubt that legal 
expressions are more frequent, and are used 
with more precision, in his writings than in 
those of any other dramatic author of the 
period. " The technical language of the law 
runs from his pen as part of his vocabulary 
and parcel of his thought." A professional 
acquaintance with the law is certainly indi- 
cated by his familiarity with the technical 
terms and phrases of its most intricate 
branches, — the law of real property and the 
law of pleading, — terms and phrases which 
he uses " with an air of as entire unconscious- 
ness as if they were a part of the language of 
his daily life." 

Lord Campbell, the Lord Chief Justice of 
the Queen's Bench, in summing up the evi- 
dence in the case, said : " I am amazed not 
only at the number of Shakespeare's juridical 
phrases and forensic allusions, but by the 
accuracy and propriety with which they are 
uniformly introduced. While novelists and 



ii 



Collier. 
Staunton. 



R. G. White. 



Lord Campbell. 



12 



Shakespeare as a Lawyer, 



Charles and 

Mary Cowden 

Clarke. 



White. 



Staunton. 



dramatists are constantly making mistakes as 
to the law of marriage, of wills, and of inheri- 
tance, to Shakespeare's law, lavishly as he 
propounds it, there can neither be demurrer, 
nor bill of exceptions, nor writ of error." 
There is a seemingly utter impossibility of 
his having acquired, on any other theory, 
than that of having studied the law, " the 
marvellous intimacy which he displays with 
legal terms, his frequent adoption of them in 
illustration, and his curiously technical knowl- 
edge of their form and force," which no mere 
quickness of intuition can account for. " Ge- 
nius, though it reveals general and even par- 
ticular truths, and facilitates all acquirement, 
does not impart facts or the knowledge of 
technical terms." If these inquiries do not 
prove that " in hot blood he stepp'd into the 
law," they help to show with what masterly 
comprehensiveness he could deal with the 
peculiarities of this, as of nearly every other 
human pursuit. Indeed, he confesses, — 

I have been a truant in the law, 

And never yet could frame my will to it. 



Shakespeare as a Lawyer. 



13 



Authors do not use technical terms in the 
familiar way in which Shakespeare speaks of 
the law, unless the terms really are familiar 
to them by frequent use ; and we find these 
terms and allusions used by him in an appar- 
ently unconscious way, as the natural turn of 
his thoughts. Among these, there are some 
which few but a lawyer would, and some even 
which none but a lawyer could, have written. 
Of course they are necessarily short and in- 
complete, for it is not in a tragedy or comedy 
that we should expect to find a technical de- 
scription of the law or any other profession. 

This question can be decided by the inter- 
nal evidence afforded by the Poet's writings. 
When Malone published his theory, he cited 
in support of it twenty-four passages. Sub- 
sequent writers have cited a much larger 
number, many of which are impertinent and 
immaterial. 



Cf. "Shake- 
speare as an 
Angler," by Rev. 
H. N. Ella- 
combe, pp. 9, 
10, 24. 



CHAPTER II. 



First Parish in 

Sudbury v. 
Jones, 8 Cush. 



IN " The Merry Wives of Windsor," Act n. 
sc. 2, where Ford, disguised, tries to in- 
duce Falstaff to assist him in his intrigue 
with Mrs. Ford, and states that for all the 
money and trouble he had bestowed upon 
her he had received no satisfaction, nor 
promise of any at her hands, there is this 
passage : — 

Fal. Of what quality was your love, then ? 

Ford. Like a fair house, built on another man's 
ground ; so that I have lost my edifice by mistaking 
the place where I erected it. 

In 1852 by a decision of the Supreme Ju- 
dicial Court of Massachusetts, the town of 
Sudbury in the county of Middlesex, lost a 
school-house " by mistaking the place where 
they erected it." The term " land " legally 



Shakespeare as a Lawyer, 



15 



includes all houses and buildings standing 
thereon. Whatever is affixed to the realty 
is thereby made parcel thereof, and belongs 
to the owner of the soil. Quicquid plantatur 
solo, solo cedit. Buildings erected on land 
of another voluntarily and without any con- 
tract with the owner become *part. of the 
real estate, and belong to the owner of 
the soil. Although the principle is one 
of great antiquity, yet it is so far techni- 
cal, that it is not familiar to unprofessional 
persons. 



Co. Litt. 4 a. 

Wentw. Off. Ex. 

14th ed. 145. 

Angus v. Dal- 

ton, 6 App. 

Cas. 740. 



In Riddle v. Welden, it was decided that 
the goods of a boarder are not liable to be 
distrained for rent due by the keeper of the 
boarding-house. Chief Justice Gibson, in 
delivering the opinion of the court, said that 
Falstaff " speaks with legal precision when he 
demands, ' Shall I not take mine ease in 
mine inn.' ' In early times an inn signified 
a dwelling ; and " To take mine ease in mine 
inne " was an ancient proverb, says Percy, not 



5 Wharton, 15. 



Henry IV. 

Part I., Act 

III. sc. 3. 



i6 



Shakespeare as a Lawyer. 



Inne. 



very different, in its application, from that 
maxim, " Every man's house is his castle ; " 
for inne originally signified a house or habi- 
tation [Sax., inne, domus, domicilium]. When 
the word inne began to change its meaning, 
and to be used to signify a house of entertain- 
ment, the proverb, still continuing in force, 
was applied in the latter sense, as it is here 
used by Shakespeare. 

An example of the use of the word, in its 
early signification, occurs in Greene's " Fare- 
well to Folly" (1591): "The beggar Irus, 
that haunted the palace of Penelope, would 
take his ease in his inne, as well as the peers 
of Ithaca." 



The Reporters, 
275, 4th ed. 



When Mr. Justice Shallow, grieved by the 
" disparagements of Falstaff," threatened to 
" make a Star-Chamber matter of it," vowing 
that " if he were twenty Sir John Falstaffs, he 
should not abuse Robert Shallow, Esquire," 
— who writes himself " Armigero," — he 
seems to have apprehended, with judicial ex- 



Shakespeare as a Lawyer. 



actness, the extraordinary jurisdiction of this 
tribunal ; slanderous words against a king's 
justice being one of the offences specially 
punished by the Star Chamber, in exercise of 
a peculiar as distinguished from an ordinary 
jurisdiction. And the charity of Sir Hugh, 
the parson, was much better than his law, 
when he supposed that the council desired 
" to hear the fear of Got, and not to hear a 
riot ; " unlawful assemblies, routs, riots, for- 
geries, perjuries, cozoanges, and libellings, 
being declared in the Reports known as 
" Star-Chamber Cases," to be the matters 
which properly belong to the jurisdiction of 
the Star Chamber. 



An exception to the rule rejecting hearsay 
evidence is allowed in the case of dying decla- 
rations. Shakespeare, in " King John," has 
put the principle on which this species of 
evidence is admitted into the mouth of the 
wounded Melun, who, finding himself disbe- 



17 



Star Chamber. 



Dying declara- 
tions. 

Best Ev. § 505. 



i8 



Shakespeare as a Lawyer. 



lieved while announcing the intended treach- 
ery of the Dauphin Lewis, exclaims : — 

Have I not hideous death within my view, 
Retaining but a quantity of life, 
Which bleeds away, even as a form of wax 
Resolveth from his figure 'gainst the fire ? 
What in the world should make me now deceive, 
Since I must lose the use of all deceit? 
Why should I, then, be false, since it is true 
That I must die here, and live hence by truth ? 

Act V. SC. A. 



The King v. 

Woodcock, i 

Leach C.C. 502. 



The King v. 
Mead, 2B.&C. 
60S, and 4 D. & 
R. 120. Regina 

v. Hind, Bell 
C. C. 253. 



Evidence of this description is admissible 
only in the single instance of homicide, 
" where the death of the deceased is the sub- 
ject of the charge, and the circumstances of 
the death are the subject of the dying decla- 
ration." One reason for thus restricting the 
admission of this species of evidence may be 
the experienced fact, that implicit reliance 
cannot in all cases be placed on the declara- 
tions of a dying person ; for his body may 
have survived the powers of his mind. Thus, 
in " King John," Prince Henry says: — 



Shakespeare as a Lawyer. 



O vanity of sickness ! fierce extremes 
In their continuance will not feel themselves. 
Death, having prey'd upon the outward parts, 
Leaves them insensible ; and 's siege is now 
Against the mind, the which he pricks and wounds 
With many legions of strange fantasies, 
Which, in their throng and press to that last hold, 
Confound themselves. Act v. so 7. 



19 



In " King Henry VIII." there is an accu- 
rate statement of the nature of a writ of prae- 
munire, and of the punishment consequent 
upon conviction thereon. " Praemunire is a 
writ, and it lieth where any man sueth any 
other in the Spiritual Court for any thing 
that is determinable in the King's Court." 
The punishment of this offence, as pre- 
scribed by the different statutes, is thus 
shortly summed up by Lord Coke : " That, 
from the conviction, the defendant shall be 
out of the kings protection, and his lands and 
tenements, goods and chattels, forfeited to the 
kingr The writ was intended to prevent 
the abuse of spiritual power. The Duke 



Praemunire. 



Termes de la 
Ley. 



1 Inst. 129 b. 



20 



Shakespeare as a Lawyer, 



Holinshed. 



of Suffolk, addressing Cardinal Wolsey, 

says, — 

Lord cardinal, the king's further pleasure is, — 
Because all those things you have done of late, 
By your power legatifie, within this kingdom, 
Fall into the compass of a prczmimire, — 
That therefore such a writ be su'd against you ; 
To forfeit all your goods, lands, tenements, 
Chattels, and whatsoever, and to be 
Out of the king 's protection : — this is my charge. 

Act iii. so 2. 

Although the purpose of the writ of praemu- 
nire, and the punishment incident to convic- 
tion, are thus technically stated, still it is by 
no means certain, that Shakespeare acquired 
this knowledge in the course of his profes- 
sional reading. From the following passages 
in Holinshed, it will be seen that Shake- 
speare merely versified that author : — 

In the meane time the king, being informed that 
all those things that the cardinall had doone by his 
power legantine within this realme, were in the 
case of the premunire and prouision, caused his at- 
turneie Christopher Hales to sue out a writ of pre- 
munire against him. — Vol. iii. p. 740, ed. 1807-8. 



Shakespeare as a Lawyer. 



21 



After this, in the king's bench his matter for the 
premunire, being called vpon, two atturneis, which 
he had authorised by his warrant signed with his 
owne hand, confessed the action, and so had iudge- 
ment to forfeit all his lands, tenements, goods, and 
cattels, and to be out of the king's protection. — lb. 
p. 741. 



To " sue out livery " is to institute a suit 
by a ward of the crown, on arriving at legal 
age, to obtain possession of his lands, which 
the king had held as guardian in chivalry. 
As this was not done until a minor came of 
age, the phrase was occasionally used as an 
expression to denote majority. Thus, Donne, 
who had been a student at Lincoln's Inn, and 
afterwards elected preacher to the Society, 
wrote : — 

Our little Cupid hath sued livery, 
And is no more in his minority. 

Eclogue, 1 61 3. 

And Fletcher, in " The Woman's Prize : " — 

If Cupid 
Shoots arrows of that weight, I '11 swear devoutly 
H 'as sued his livery, and is no more a boy. 

Act ii. sc. 1. 



22 



Ouster le main. 



Attorneys-gene- 
ral. 



Attorneys. 



Shakespeare as a Lawyer. 



To " sue out livery " was a writ of ouster 
le main, that is, his livery, that the king's 
hand might be taken off, and the land deliv- 
ered \.o him. York says to Richard II., — 

If you do wrongfully seize Hereford's rights, 
Call in the letters-patents that he hath 
By his attorneys-general to sue 
His livery, and deny his offer'd homage, 
You pluck a thousand dangers on your head. 

Richard II. Act ii. sc. I. 

And in- the third scene of the same act, Bol- 
ingbroke says, — 

I am denied to sue my livery here, 
And yet my letters-patents give me leave : 
My father's goods are all distrai?i , d and sold ; 
And these and all are all amiss employ'd. 
What would you have me do? I am a subject, 
And challenge law : attorneys are denied me ; 
And therefore personally I lay my claim 
To my inheritance of free descent. 

Hotspur, in giving a description of Henry 
the Fourth's condition, when he landed at 
Ravenspurg, refers to the same act of Rich- 
ard II. toward Bolingbroke : — 

He came but to be Duke of Lancaster, 
To sue his livery and beg his peace. 

First Part of Henry IV. Act iv. sc. 3. 



Shakespeare as a Lawyer. 



2 3 



The corresponding passage in Holinshed, 
which Shakespeare dramatized in " Richard 
II.," is as follows : — 

In this meane time, the duke of Lancaster de- 
parted out of this life at the bishop of Elies place 
in Holborne, and lieth buried in the cathedrall 
church of saint Paule in London, on the northside 
of the high altar, by the ladie Blanch his first wife. 
The death of this duke gaue occasion of increasing 
more hatred in the people of this realme toward 
the king, for he seized into his hands all the goods 
that belonged to him, and also receiued all the rents 
and reuenues of his lands which ought to haue 
descended vnto the duke of Hereford by lawfull 
inheritance, in reuoking his letters patents, which 
he had granted to him before, by vertue wherof he 
might make his attorneis generall to sue liuerie for 
him, of any maner of inheritances or possessions 
that might from thencefoorth fall vnto him, and 
that his homage might be respited, with making 
reasonable fine : whereby it was euident, that the 
king meant his vtter vndooing. — Vol. ii. p. 849, 
ed. 1807-8. 

" Livery of seisin " is a delivery of posses- 
sion of lands, tenements, and hereditaments, 
to one who has a right to the same. It is a 



Holinshed. 



Livery of seisin. 



24 



" The Devil's 
Law Case." 



Faerie Queene. 

Bk. vi. c. iv. 

st. 37. 



A "contempt." 



Charged upon 
interrogatories. 



Shakespeare as a Lawyer. 



ceremony of the common law, used in the 
conveyance of lands. Livery and seisin are 
delivery and possession. In Webster's " The 
Devil's Law Case," Act i. sc. 2, Romelio 
says, — 

Keep your possession, you leave the door by the ring ; 
That 's livery and seisin in England. 

At common law, on conveyance of lands, 
houses, &c, the ring or latch of the door is 
delivered to the feoffee. Spenser uses this 
legal term : — 

Therefore inclyning to his goodly reason, 
Agreeing well both with the place and season, 
She gladly did of that same babe accept, 
As of her owne by liverey and seisin. 



In the Court of Queen's Bench, according 
to Lord Campbell, when a complaint is made 
against a person for a " contempt," the prac- 
tice is, that, before sentence is finally pro- 
nounced, he is sent into the crown office, and 
being there " charged upon interrogatories" 
he is made to swear that he will " answer all 
things faithfully T Accordingly, in the moon- 



Shakespeare as a Lawyer. 



light scene in the garden at Belmont, after a 
partial explanation between Bassanio, Grati- 
ano, Portia, and Nerissa, about their rings, 
some further inquiry being deemed neces- 
sary, Portia says, — 

Let us go in ; 

And charge us there upon inter 'gatories, 
And we will answer all things faithfully. 

* Gratiano assents, observing, — 

Let it be so : the first inter 1 gatory 
That my Nerissa shall be sworn on is, 
Whether till the next night she had rather stay, 
Or go to bed now, being two hours to day. 

The Merchant of Venice, Act v. sc. I . 



To " lay by the heels " was the technical 
expression for committing to prison. The 
case of the Mayor of Hereford is thus re- 
ported in Salkeld : " Per Holt C. J. The 
Mayor of Hereford was laid by the heels, for 
sitting in judgment in a cause where he him- 
self was lessor of the plaintiff in ejectment, 
though he by charter was sole judge of the 



To lay by the 
heels." 



i Salk. 396. 



26 



Nares's Glossa- 
ry, s.v. 
" Charge." 



Shakespeare as a Lawyer. 



court." In " Henry VIII." the lord chamber- 
lain says, — 

As I live, 
If the king blame me for 't, I '11 lay ye all 
By the heels, and suddenly ; and on your heads 
Clap round fines for neglect. Act v. sc. 3. 

And the Chief Justice to Falstaff : — 

To punish you by the heels would amend the 
attention of your ears ; and I care not if I do be- 
come your physician. — Second Part of Henry IV. 
Act i. sc. 2. 



To charge his fellows seems to have been 
a regular part of the duty of the constable of 
the watch. In " Much Ado About Nothing," 
Dogberry, in his " charge " to the watchmen, 
uses the precise words of the oath adminis- 
tered to the grand jury in England and in 
this country at the present day : — 

Keep your fellows' counsels and your own. 

Act iii. sc. 3. 

Curious as the charge is, it appears to satisfy 
the watchmen, whose resolution is as useful 
as that is sagacious : — 



Shakespeare as a Lawyer. 



27 



Well, masters, we hear our charge : let us go sit 
here upon the church-bench till two, and then all 
to bed. — Act iii. sc. 3. 



The word purchase, in its common and 
confined acceptation, is now applied only to 
such acquisitions of land as are obtained by 
way of bargain and sale for money, or other 
valuable consideration. But much oftener in 
our old writers simply to acquire, being prop- 
erly to hunt ; and then to take in hunting ; 
and then, as the commonest way of acquir- 
ing is by giving money in exchange, to buy. 
Thus, Lord Bacon : " And therefore true 
consideration of estate can hardly find what 
to reject, in matter of territory, in any em- 
pire, except it be some glorious acquests ob- 
tained sometime in the bravery of wars, 
which cannot be kept without excessive 
charge and trouble ; of which kind were the 
purchases of King Henry VIII. that of 
Tournay and that of Bologne." In its legal 
acceptation, " to purchase " is to acquire real 
estate by means other than by descent or 



Purchase. 



" Of the True 

Greatness of the 

Kingdom of 

Britain." 

Works, vol. vii. 

p. 54, ed. Sped- 

ding. 



28 



Shakespeare as a Lawyer. 



inheritance. If one gives land freely to an- 
other, he is, in the eye of the law, a pur- 
chaser. A man who has his father's estate 
settled upon him in tail, before he was born, 
is also a purchaser; for he takes quite an- 
other estate than the law of descents would 
have given him. And even if the ancestor 
devises his estate to his heir-at-law by will, 
with other limitations, or in any other shape, 
than the course of descents would direct, 
such heir takes by purchase. In " Antony 
and Cleopatra " the word is used in its legal 
sense. Lepidus, in palliating the faults of 
" A man who is the abstract of all faults," 
says, — 

His faults, in him, seem as the spots of heaven, 

More fiery by night's blackness ; hereditary, 

Rather than purc/ias'd. Act. i. sc. 4. 



3 Inst. cap. I., 
p. 1 , in margin. 



Injuria illata judici seu locum tenenti 
regis videtur ipsi regi illata, maxime si 
fiat, in exercente officium, is a maxim of 
the law. 



Shakespeare as a Lawyer. 



29 



Shakespeare, in the following passage 
from " The Second Part of Henry IV.," 
refers to this maxim, or to the law which it 
describes : — 

Chief Justice. I then did use the person of your father.; 
The image of riis power lay then in me : 
And in th' administration of his law, 
Whiles I was busy for the commonwealth, 
Your highness pleased to forget my place, 
The majesty and power of law and justice, 
The image of the king whom I presented, 
And struck me in my very seat of judgment ; 
Whereon, as an offender to your father, 
I gave bold way to my authority, 
And did commit you. Act v. sc. 2. 

In a recent case in the House of Lords, 
Lord Selborne, in the course of the argument 
as to notice, referred to the case of Chief Jus- 
tice Gascoigne, who without a moment's hesi- 
tation, and without any prior notification, 
sent the Prince of Wales instantly to the 
Fleet Prison for a contempt of court com- 
mitted in praesentia; the heir of the crown 
submitting patiently to the sentence, and 
making reparation for his error by acknowl- 
edging it. 



Walt v. Ligert- 

wood, L. R. 2 

H. L. Sc. App. 

367 note. 



30 



Shakespeare as a Lawyer. 



Cheaters. 



Cheaters was the popular name for escheat- 
ers, those officers employed to certify to the 
Chancery or Exchequer what escheats fall to 
the crown through forfeiture, the death of 
tenants without heirs, &c. An escheater 
was an official who appears to have been re- 
garded by the common people, in Shake- 
speare's day, much the same as they now look 
upon an informer. In " The Merry Wives 
of Windsor," Act i. sc. 3, Falstaff, speaking 
of " Ford's wife " and " Page's wife," says, " I 
will be cheater to them both, and they shall 
be exchequers to me." And in Sonnet CLI. 
is this line, — 

Then, gentle cheater, urge not my amiss, 

in which " cheater " signifies escheater. 



Son assault 
demesne. 



In delineating the character of " that dear 
simpleton," Sir Andrew Ague-cheek, Shake- 
speare causes him to suppose that son assault 
demesne is not a good plea to an action of 
trespass for an assault and battery. After 
fighting with Sebastian, Sir Andrew says, — 



Shakespeare as a Lawyer. 



3i 



I '11 have an action of battery against him, if 
there be any law in Illyria: though I struck him 
first, yet it 's no matter for that. — Twelfth Night, 
Act iv. sc. 1. 



If, at the trial of a case, a question of law 
arises, the course is for the judge to decide 
it. But it may happen that one of the parties 
is dissatisfied with the decision, and may wish 
to have it revised by a court of superior ju- 
risdiction. For this purpose, it becomes nec- 
essary to put the question of law on record 
for the information of that court. The party 
excepting to the opinion of the judge tenders 
him a bill of exceptions ; that is, a statement 
in writing of the objection made by the party 
to his decision ; to which statement, if truly 
made, the judge is bound to set his seal, in 
confirmation of its accuracy. 

In " Twelfth Night" Maria says to Sir Toby: 

By my troth, Sir Toby, you must come in earlier 
o' nights : your cousin, my lady, takes great excep- 
tions to your ill hours. 

Sir Toby. Why, let her except before excepted. 

Act i. sc. 3. 



Generes 

v. Campbell, n 

Wallace, 193. 



Bill of Excep- 
tions. 



32 



Shakespeare as a Lawyer. 



" This is a whimsical use of a law-phrase," 
says Mr. Grant White, " which is one of the 
numberless evidences of Shakespeare's famili- 
arity with the forms of that profession." 



Justices of the 
peace. 



The picture in " Coriolanus " which Shake- 
speare drew of the two tribunes, Sicinius and 
Brutus, is not without application to certain 
judges of the present day. Menenius thus 
reproaches the tribunes: — 

You wear out a good wholesome forenoon in 
hearing a cause between an orange-wife and a 
fosset-seller ; and then rejourn the controversy of 
three-pence to a second day of audience. When 
you are hearing a matter between party and party, 
if you chance to be pinched with the colic, you 
make faces like mummers ; set up the bloody flag 
against all patience ; and, in roaring for a chamber- 
pot, dismiss the controversy bleeding, the more en- 
tangled by your hearing : all the peace you make in 
their cause is, calling both the parties knaves. 

Act ii. sc. I. 



Shakespeare says that justices of the peace 
attested the most absurd stories with their 



Shakespeare as a Lawyer, 



33 



signatures. Thus, in " The Winter's Tale," 
Act iv. sc. 3 : — 

Aut. Here 's another ballad, Of a fish, that ap- 
peared upon the coast on Wednesday the fourscore 
of April, forty thousand fathom above water, and 
sung this ballad against the hard hearts of maids : 
it was thought that she was a woman, and was 
turned into a cold fish for she would not exchange 
flesh with one that loved her : the ballad is very 
pitiful, and as true. 

Dor. Is it true too, think you ? 

Aut. Five justices hands at it ; and witnesses 
more than my pack will hold. 



Lord Coke, in the " Fourth Institute," com- 
menting on the jurisdiction and power of 
justices of the peace, says : " It is such a form 
of subordinate government for the tranquil- 
lity and quiet of the realm, as no part of the 
Christian world hath the like, if the same be 
duly executed." Shakespeare's picture of a 
justice of the peace, in the opening scene of 
" The Merry Wives of Windsor," certainly 
differs from the office so unduly commended, 
in language so extravagantly flattering, by 



4 Inst. 170. 



34 



Shakespeare as a Lawyer. 



the Lord Chief Justice. It has been well 
said that Shakespeare's picture " is so truth- 
ful as to be hardly exaggerated or caricatured. 
The original of that picture is confined to 
no age." 



Holt C. J. in 

Smith v. Wood, 

2 Salk. 692. 



" Character 32 " 
(163 1), quoted 
in Nares's Glos- 
sary, 2d ed. 



In the reign of Elizabeth, actions for slan- 
derous words were of frequent occurrence ; 
and many refined distinctions were resorted 
to by the judges. To call a man a cuckold 
was not an ecclesiastical slander : but wittol 
was; for it imports his knowledge of and 
consent to his wife's adultery. Shakespeare 
noticed this distinction. In " The Merry 
Wives of Windsor," Act ii. sc. 2, Ford ex- 
claims, — 

Terms ! names ! — Amaimon sounds well ; 
Lucifer, well ; Barbason, well ; yet they are devils' 
additions, the names of fiends : but cuckold ! wittol- 
cuckold ! the devil himself hath not such a name. 

" A cuckold," says Lenton, " is a harmelesse 
horned creature ; but they [his horns] hang 
not in his eies, as your wittals doe." 



Shakespeare as a Lawyer, 



35 



Formerly, when sentence of death was 
pronounced, the criminal was said to be 
attainted, attinctus, stained, or blackened. 
"This is after judgment ; for there is great 
difference," says Blackstone, " between a man 
convicted and attainted, though they are fre- 
quently through inaccuracy confounded to- 
gether." The consequences of attainder were 
forfeiture and corruption of blood. In " The 
First Part of King Henry VI.," Act ii. sc. 4, 
Richard Plantagenet is asked, — 

Was not thy father, Richard Earl of Cambridge, 
For treason executed in our late king's days ? 
And, by his treason, stand'st thou not attainted, 
Corrupted, and exempt from ancient gentry? 
His trespass yet lives guilty in thy blood ; 
And, till thou be restor'd, thou art a yeoman. 

Plan. My father was attached, not attainted ; 
Condemn'd to die for treason, but no traitor. 

Attainder, forfeiture, and corruption of blood 
have been entirely abolished. 



Attainder. 



4 Bl. Comm, 381. 



In " The Winter's Tale," Act i. sc. 2, there 
is an allusion to that abuse in English law 



36 



Shakespeare as a Lawyer. 



The Seven 
Bishops. 



procedure which first lighted the flame of 
philanthropy in the bosom of Howard, — the 
dragging back acquitted prisoners to their 
cells, in order to satisfy the fees of jailers. 
Hermione, trying to persuade Polixenes, 
King of Bohemia, to prolong his stay at the 
court of Leontes in Sicily, says to him, — 

Will you go yet? 
Force me to keep you as a prisoner, 
Not like a guest ; so you shall pay your fees 
When you depart, and save your thanks. 

Again in " The Third Part of Henry VI.," 
Act iv. sc. 6, in the scene in the Tower, King 
Henry inquires of the Lieutenant of the 
Tower, — 

Master lieutenant, now that God and friends 
Have shaken Edward from the regal seat, 
And turn'd my captive state to liberty, 
My fear to hope, my sorrows unto joys, — 
At our enlargement what are thy due fees ? 

When the Seven Bishops were brought be- 
fore the Court of King's Bench by a writ of 
habeas corpus, on leaving the Tower they re- 
fused to pay the fees required by Sir Edward 



Shakespeare as a Lawyer. 



Hales as lieutenant, whom they charged with 
discourtesy. He so far forgot himself as to 
say that the fees were a compensation for 
the irons with which he might have loaded 
them, and the bare walls and floor to which 
he might have confined their accommodation. 
" I remember," writes Lord Campbell, 
" when the Clerk of Assize and the Clerk of 
the Peace were entitled to exact their fee 
from all acquitted prisoners, and were sup- 
posed in strictness to have a lien on their 
persons for it. I believe there is now no tri- 
bunal in England where the practice remains, 
excepting the two Houses of Parliament ; but 
the Lord Chancellor and the Speaker of the 
House of Commons still say to prisoners 
about to be liberated from the custody of the 
Black Rod or the Sergeant-at-Arms, ' You 
are discharged, paying your fees' " 



In " Love's Labour's Lost," Act ii. sc. i, is 
this passage, which has occasioned some 
difficulty : — 



37 



Lord Campbell. 



3§ 



Shakespeare as a Lawyer. 



Shakespeare, 
vol. iii. p. 453. 



Co. Litt. lib. iii. 
cap. 4, sect. 292. 



Boyet. So you grant pasture for me. 

[ Offering to kiss her. 
Maria. Not so, gentle beast : 

My lips are no common, though several they be. 
Boyet. Belonging to whom? 
Maria. To my fortunes and me. 

Mr. Grant White gives this explanation : 
" Maria's meaning and her first pun are plain 
enough : the second has been hitherto ex- 
plained by the statement that the several or 
severell in England was a part of the com- 
mon, set apart for some particular person or 
purpose, and that the town bull had equal 
right of pasture in common and severell. It 
seems to me, however, that we have here an- 
other exhibition of Shakespeare's familiarity 
with the law ; and that the allusion is to ten- 
ancy in common by several (i. e. divided, dis- 
tinct) title. Thus, — ' Tenants in Common 
are they which have Lands or Tenements in 
Fee-simple, fee-taile. or for terme of life, &c., 
and they have such Lands or Tenements by 
severall Titles, and not by a joynt Title, and 
none of them know by this his severall, but 
they ought by the Law to occupie these 



Shakespeare as a Lawyer. 



39 



Lands or Tenements in common and pro 
indiviso, to take the profits in Common.' 
1 Also if lands be given to two to have and 
to hold s.[everally] the one moiety to the one 
and to his heires, and the other moiety to the 
other and to his heires, they are Tenants in 
Common.' Maria's lips were several as being 
two, and (as she says in the next line) as be- 
longing in common to her fortunes and to her- 
self ; but yet they were no common pasture." 

" The difficulty in this passage has arisen 
from the particle though, which appears to 
destroy the antithesis between common, i. e. 
public land, and several, which, in the ordi- 
nary acceptation, implies enclosed or private 
property. If, however, w T e take both as places 
devoted to pasture, — the one for general, the 
other for particular use, — the meaning is 
easy enough. Boyet asks permission to graze 
on her lips. ' Not so,' she answers ; ' my lips, 
though intended for the purpose, are not for 
general use.' " 

" Fields that were enclosed were called 
severals, in opposition to commons, the former 



lb. sect. 298 ; 

and see this 

Chapter passim. 



Staunton, 
Shakespeare, 
vol. i. p. 86. 



Halliwell, vol. 
iv. p. 274, fol. ed. 



4Q 



Shakespeare as a Lawyer. 



New Illustra- 
tions of Shake- 
speare, vol. i. 
p. 267. 



Croft, quoted by 

Halliwell, ubi 

supra. 



belonging to individuals, the others to the 
inhabitants generally. When commons were 
enclosed, portions allotted to owners of free- 
holds, copyholds, and cottages, were fenced in, 
and termed severals : so Maria says, playing on 
the word, — my lips are not common though 
they are certainly several, once part of the 
common ; or, though my lips are several, a 
field, they are certainly no common. Accord- 
ing to Mr. Hunter, 'severals, or several lands, 
are portions of common assigned for a term 
to a particular proprietor, the other common- 
ers waiving for the time their right of common 
over them ; ' but, although the term may have 
been used in this and some other restricted 
senses, there can be no doubt but that the 
meaning was generally accepted in accord- 
ance with the explanation given above." 

" My lips are no common, though several 
they be ; " a several is a stinted pasture, or 
joint possession of a few individuals. 



Why should my heart think that a several plot 
Which my heart knows the wide world's common place ? 

Sonnet CXXXVII. 



Shakespeare as a Lawyer. 



4i 



In " The Comedy of Errors," Act iv. sc. 2, 
Shakespeare's knowledge of the language of 
pleading, process, and officers, is apparent. 
Adriana asks Dromio of Syracuse, " Where 
is thy master, Dromio ? is he well ? " and 
Dromio replies, — 

No, he 's in Tartar limbo, worse than hell. 

A devil in an everlasting garment hath him ; 

One whose hard heart is button'd up with steel ; 

A fiend, a fury, pitiless and rough ; 

A wolf, nay, worse, — a fellow all in buff; 

A back friend, a shoulder-clapper, one that countermands 

The passages of alleys, creeks, and narrow lands ; 

A hound that runs counter, and yet draws dry foot well ; 

One that, before the judgment, carries poor souls to hell. 

Adr. Why, man, what is the matter? 

Dro. S. I do not know the matter : he is 'rested 
on the case. 

Adr. What, is he arrested ? tell me at whose suit. 

Dro. S. I know not at whose suit he is arrested 
well ; 
But 'is in a suit of buff which 'rested him, that can I tell. 

Adr. This I wonder at, 

That he, unknown to me, should be in debt. — 
Tell me, was he arrested on a band '? 

Dro. S. Not on a band, but on a stronger thing, — 
A chain, a chain. 

A sergeant's buff leather garment was called 
durance ; partly, it would appear, on account 



Staunton's 
Shakespeare, 
vol. i. p. 203. 



42 



Shakespeare as a Lawyer. 



Staunton, vol. i. 
p. 204. 



of its everlasting qualities, and partly from 
a quibble on the occupation of the wearer, 
which was that of arresting and clapping men 
in durance or prison. This peculiar garb is 
again referred to in a passage in " The First 
Part of Henry IV.," Act i. sc. 2,— 

And is not a buff jerkin a most sweet robe of durance 1 

the point of which seems not to have been 
fully understood by the commentators. A 
robe of durance was a cant term, implying 
imprisonment ; and the prince, after dilating 
on purse-stealing, humorously calls attention 
to its probable consequences, by his query 
about the buff jerkin. See Middleton's 
" Blurt, Master Constable," Act iii. sc. 2 : — 

Tell my lady, that I go in a suit of durance. 

To run coimter is to follow on a false scent : 
to draw dry foot means to track by the mere 
scent of the foot. A hound that does one is 
not likely to do the other : but the ambiguity 
is explained by the double meaning attached 
to the words coitnter and dry foot, — the 



Shakespeare as a Lawyer. 



43 



former implying both false and a prison ; and 
the latter, privation of scent and lack of 
means. The sheriff's officer, as he tracks for 
a prison, may be said to run counter ; and, as 
he follows those who have expended their 
substance, he draws dry foot. 

By before the judgment, Dromio is sup- 
posed to allude to arrest on mesne process. 
Hell was a term for the worst dungeon in 
the wretched prisons of the time. The de- 
partment thus called was the receptacle of 
those who had no means to pay the extor- 
tionate fines exacted for better accommo- 
dation. 

This scene in the fourth act of " The Com- 
edy of Errors " shows that Shakespeare was 
very familiar with some of the most refined 
of the principles of the science of special 
pleading ; a science which contains the quint- 
essence of the law. Dromio very correctly 
answers that his master was arrested in an 
action on the case for the price of a gold chain. 
" The line drawn by the law between actions 
on the case and actions of trespass," said 



Gifford's note 
to "The City 

Madam," Act i. 

sc. i. Vol. 4, p. 7, 
ed. 1813. 



Trespass on the 
case. 



44 



Shakespeare as a Lawyer. 



2 W. Bl. 892 ; 

s. c 1 Smith 

L. C. 405, 5th 

London ed. 



See Sharrod v. 
Railway Co. 
4 Exch. 580. 



Lord Chief Justice de Grey, in the leading 
case of Scott v. Shepherd, " is very nice and 
delicate." And although statutes have been 
passed, both in England and some of the 
United States, abolishing special demurrers, 
and allowing the joinder of different forms of 
action, the distinction, often subtle and re- 
fined, sometimes invisible, between trespass 
and case serves in many instances as a test 
of substantial liability. 



Indictment. 



In the Court of Justice in " The Winter's 
Tale," Act iii. sc. 2, the indictment against 
, Queen Hermione for high treason is framed 
with quite as much technical precision as is 
now required in England since the passage 
of Lord Campbell's Act, 14 & 15 Vict. c. 
100: — 

Hermione, queen to the worthy Leontes, king 
of Sicilia, thou art here accused and arraigned of 
high treason, in committing adultery with Polixe- 
nes, king of Bohemia, and conspiring with Camillo 
to take away the life of our sovereign lord the king, 
thy royal husband : the pretence whereof being by 



Shakespeare as a Lawyer, 



45 



circumstances partly laid open, thou, Hermione, 
contrary to the faith and allegiance of a true sub- 
ject, didst counsel and aid them, for their better 
safety, to fly away by night. 

And the same remark applies to the indict- 
ment on which Lord Say was arraigned : — 

Thou hast most traitorously corrupted the youth 
of the realm in erecting a grammar-school : and 
whereas, before, our forefathers had no other books 
but the score and the tally, thou hast caused print- 
ing to be used ; and, contrary to the king, his crow?i } 
and dignity \ thou hast built a paper-mill. It will be 
proved to thy face that thou hast men about thee 
that usually talk of a noun and a verb, and such abom- 
inable words as no Christian ear can endure to hear. 
Thou hast appointed justices of peace, to call poor 
men before them about matters they were not able 
to answer. Moreover, thou hast put them in prison ; 
and because they could not read, thou hast hanged 
them ; when, indeed, only for that cause they have 
been most worthy to live. 

At the period when Shakespeare wrote, 
whilst persons, to their destruction, were 
presumed to be learned in point of law, they 
were customarily hanged by reason of igno- 



Henry VI. Part 
II. Act iv. sc. 7. 



3 Inst. 59. 



46 



Shakespeare as a Lawyer. 



Henry VI. Part 
II. Act iv. sc. 7. 



ranee, in point of fact, depriving them of the 
benefit of clergy. As Cade says, — 

Thou hast put men in prison ; and because they 
could not read, thou hast hanged them ; when, in- 
deed, only for that cause they have been most 
worthy to live. 

Cade's proclamation, announcing the pol- 
icy he should pursue during his administra- 
tion, alludes to an ancient feudal custom : — 

The proudest peer in the realm shall not wear a 
head on his shoulders, unless he pay me tribute ; 
there shall not a maid be married, but she shall pay 
to me her maidenhead ere they have it : men shall 
hold of me in capite ; and we charge and command 
that their wives be as free as heart can wish or 
tongue can tell. 

The lord of the fee had anciently a right to 
lie with his tenant's wife on her wedding 
night. Cade declares his intention to assume 
this right, " with this alteration, that instead 
of conferring the privilege on every lord of a 
manor, to be exercised within the manor, he 
is to assume it exclusively for himself all over 
the realm, as belonging to his prerogative 



Shakespeare as a Lawyer. 



royal ; " imitating, in this respect, the custom 
of one of the nations of Libyans (as related 
by Herodotus), who exhibited to the king 
their virgins who were about to marry ; and, 
if any one suited the pleasure of his majesty, 
he deflowered her. 

Cade then proceeds to announce, as a part 
of the policy of his government, that he shall 
abolish tenure in free socage and that all men 
shall hold of him in capite ; and, although 
his subjects should no longer hold in free 
socage, "their wives should be as free as 
heart can wish or tongue can tell." Strange 
to say, says Lord Campbell, this phrase, or 
one almost identically the same, " as free as 
tongue can speak or heart can think," is 
feudal, and was known to the ancient law of 
England. In the tenth year of King Henry 
VII., Lord Chief Justice Hussey, in a con- 
sidered judgment, delivered the opinion of 
the whole Court of King's Bench as to the 
construction to be put upon the words, 
" as free as tongue can speak or heart can 
think." 



47 



Melpom. iv. i( 



Lord Campbell. 



Year Book, Hil. 

Term, 10 Hen. 

VII. fol. 13, 

pi. 6. 



48 



Shakespeare as a Lawyer. 



Absque hoc. 

Stephen PI. 193- 

218, 5th ed. 
9 A. & E. 309. 



In " The Second Part of Henry IV.," Act 
v. sc. 5, Pistol uses the term, absque hoc, 
which is technical in the last degree. This 
was a species of traverse, used by special 
pleaders when the record was in Latin, 
known by the denomination of a special 
traverse. The subtlety of its texture, and 
the total dearth of explanation in all the 
Reports and treatises extant in the time of 
Shakespeare with respect to its principle, 
seem to justify the conclusion that he must 
have attained a knowledge of it from actual 
practice. 



The Reporters, 

pp. 147-153, 

4th ed. 



1 Plowd. 253. 



The first scene in the fifth act of " Ham- 
let " " is the mine which has produced the 
richest legal ore." I print from " The Re- 
porters " Mr. Wallace's entertaining version 
of this scene, and of the legal and logical 
subtleties involved in the celebrated case of 
Hales v. Petit reported in Plowden's Com- 
mentaries, the arguments and decision in 
which it has been suggested that Shake- 
speare intended to ridicule. 



Shakespeare as a Lawyer. 



49 



It has been supposed by a very grave 
writer, at once a lawyer and a critic, and, in- 
deed, has been very extensively believed, that 
Hales v. Petit, one of Plowden's cases, fur- 
nished to Shakespeare part of the scene of 
the grave-diggers in Hamlet. Whether, as 
it has been thus supposed, Shakespeare ever 
studied the Reports of Plowden, then still in 
Norman French, or whether only in the per- 
vading ubiquity and power of his genius, he 
was uttering, in the unreal dialogue of clowns, 
the actual language of ermined nonsense, 
may not now be easy to decide. For myself, 
I should rather recall the suggestions of Gib- 
bon, who, noting some beautiful lines of Greg- 
ory Nazianzen, which burst from the heart 
and speak the pangs of injured and lost 
friendship, directs attention to the coinci- 
dence of phraseology in these and the 
pathetic complaint which Helena in " The 
Midsummer Night's Dream " addresses to 
her friend, Hermia, upon the same subject. 
" Shakespeare," he adds, however, " had never 
read the poems of Gregory Nazianzen : he 



Sir John 

Hawkins, note 

to Hamlet, Act 

v. sc. i. " The 

New Variorum," 

vol. iii. p. 376 

note. 



Decline and 

Fall, chapter 

xxvii., A. D. 

34o, 380. 



The Reporters, 
p. 148, 4th ed. 



was ignorant of the Greek language ; but his 
mother-tongue, the language of Nature, is 
the same in Cappadocia and in Britain." 
Whether Shakespeare studied Plowden or 
not, his grave-diggers in Hamlet, it is certain, 
have left a satire on the " sober follies " of the 
court, bv arguments so like their own as to 

'J o 

have originated the conjecture that " Deci- 
sions in Westminster" must have been trans- 
cribed for the entertainment of Groundlings 
at the " Globe Theatre " and ;i Blackfriars." 
The case was thus : — 

Sir James Hales, one of the Justices of 
Common Pleas, and the son of Sir John 
Hales, eminent as a Baron of the Exchequer, 
had committed suicide, in his sober senses, 
bv drowning himself in a river or water- 
course near his house in Canterbury. The 
coroner, with his jury, sat upon the body, and 
presented that " passing through ways and 
streets in the same city unto the aforesaid 
river,'' Sir James had "voluntarily entered 
the same, and himself therein feloniouslv and 
voluntarily drowned." A lease to him and 



Shakespeare as a Lawyer. 51 



his wife as joint tenants was seized by the 
Crown as forfeited by the felony of his sui- 
cide, and re-granted to Petit, who endeavored 
to enter, while Lady Hales, claiming as sur- 
vivor in joint-tenancy to her lord, sued Petit 
for the trespass. It being admitted that if 
Sir James had committed felony in his life- 
time, the lease was forfeited, the question 
before the court was, whether Sir James, in 
drowning himself, had committed suicide in 
his own lifetime. For if the felony was not 
committed until after he was dead, then Lady 
Hales clearly had the case. 

A Justice of the King's court — himself a 
son of one of the King's Barons of the Ex- 
chequer — charged with having committed 
a felony when alive, was an allegation not 
common in Westminster Hall, and to have 
committed the offence after he was dead was 
an imputation still more alarming ; while to 
have achieved any such misfortune in the 
imaginary instant of " betweenity " — that is 
to say, when he was neither dead nor alive — 
was as difficult of comprehension as either of 



52 



Shakespeare as a Lawyer. 



The Reporters, 
149, 4th ed. 



the other possibilities. The experimentum in 
corpore vili was a reproach which no one 
could throw upon the counsel. It was clearly 
a great case. Six sergeants-at-law argued it, 
and their dialectics would have done honor 
to all the monks that ever assembled round 
the cell or the shrine of the saint of Canter- 
bury himself. 

Lady Hales' counsel contended that, to 
make the felony, both the cause of the death 
and the death itself must unite and be com- 
plete. " A man could not be felo de se until 
the death of himself be fully had and con- 
summate." The death must precede the fel- 
ony, and a fortiori, the forfeiture, which was 
its consequence. Here, admitting that the 
cause of his death — the throwing himself 
into the water — was done in his lifetime, 
and so completed, still, the death was a thing- 
subsequent, and not complete in his lifetime. 
When he was dead he was not alive. The 
death was not to have relation to the cause 
of it, as was shown by a position assumed as 
admitted, that if A. gave B. a mortal stab, of 



Shakespeare as a Lawyer, 



53 



which B. died, only some time after, A. might 
give away his goods to C. after the stab, and 
before the death, and the gift would be good ; 
and by a case cited from 1 1 Henry IV., where 
two constables had voluntarily let a man es- 
cape that had given a wound to another, who 
afterwards died of it ; yet it was not felony in 
the constables, " for the death hath no rela- 
tion to the cause of it, nor was he that gave 
the wound a felon before the party dieth." 
Although " the forfeiture comes at the same 
instant that he dies, yet in things of an in- 
stant there is a priority of time in consid- 
eration of law, and the one shall be said to 
precede the other, although both shall be said 
to happen at one instant, for every instant 
contains the end of one time and the com- 
mencement of another. And accordingly 
here the death and the forfeiture shall come 
together, and at one same time, and yet there 
is a priority, that is, the end of his life makes 
the commencement of the forfeiture, though, 
at the same time, the forfeiture is so near to 
the death, that there is no mean time between 



Year Book, u 
Hen. IV. 



54 



Shakespeare as a Lawyer. 



The Reporters, 
p. 150, 4th ed. 



them, yet notwithstanding that, in considera- 
tion of law, the one precedes the other, but by 
no means has the forfeiture relation to any 
time in his life." 

This clear and lucid explanation of the 
whole matter it was not easy to answer ; and 
four sergeants, Walsh, Comly, Benloe, and 
Carus, argued e contra for Petit. • They con- 
tended that the forfeiture was to have rela- 
tion to the act done in the party's lifetime, 
which was the cause of his death, and upon 
this that the parts of the act were to be con- 
sidered. " And Walsh said, that the act 
consists of three parts. The first is the im- 
agination, which is a reflection or meditation 
of the mind, whether or no it is convenient 
for him to destroy himself, and what way it 
can be done. The second is the resolution, 
which is a determination of the mind to de- 
stroy himself, and to do it in this or that par- 
ticular way. The third is the perfection, 
which is the execution of what the mind has 
resolved to do. And this perfection consists 
of two parts ; viz., the beginning and the end. 



Shakespeare as a Lawyer. 



55 



The beginning is the doing of the act which 
causes the death, and the end is the death, 
which is only a sequel to the act." 

These elementary divisions were amplified 
and complicated in a style worthy of their 
conception, and until the matter was fairly 
twisted and knotted into a state fit for the 
judicial explication. 

In giving judgment upon their late brother, 
" the Lord Dyer said, \\\2Xfive things were to 
be considered in the case, — 

i. The quality of the offence of Sir James 
Hales ; 

2. To whom the offence is committed ; 

3. What shall he forfeit? 

4. From what time the forfeiture shall com- 
mence ; and 

5. If the term here shall be taken from the 
wife." 

On the 1st point, it was clear that Sir 
James had been acting by the instigation of 
the devil, and was a murderer. 

On the 2d, that as the king, as head, " had 
lost one of his mystical members," the offence 
was against him. 



The Reporters, 
p. 150, 4th ed. 



56 



Shakespeare as a Lawyer. 



The Reporters, 
p. 151, 4th ed. 



On the 3d, that his majesty, having the 
right to the goods of felons, on account of 
the loss he suffered in their death, and " not 
in respect that holy church will not meddle 
with them," was entitled to Sir James's goods. 

But the great point of difficulty, the 4th 
point, — that is to say, whether the Right 
Honorable Justice, who had so lately drowned 
himself, had done so while he was alive, — 
seems to have been settled conclusively by 
Sir Anthony Browne. " He said Sir James 
Hales was dead; and how came he to his 
death ? It may be answered, by drowning. 
And who drowned him ? Sir James Hales. 
And when did he drown him ? In his life 
time. So that Sir James Hales, being alive, 
caused Sir James Hales to die ; and the act 
of the living man was the death of the dead 
man. And then for this offence it is reason- 
able to punish the living man who committed 
the offence, and not the dead man. But how 
can he be said to be punished alive, when the 
punishment comes after his death ? Sir, this 
can be done no other way but by divesting 



Shakespeare as a Lawyer, 



57 



out of him, from the time of the act done in 
his life, which was the cause of his death, the 
title and property of those things which he 
had in his lifetime." 

The judicial duty which was included in 
this case of Hales v. Petit, it must be con- 
fessed, was a hard one. It seems, in fact, to 
have involved the necessity of finding the 
dividing line between To be and Not to 
be ; to discern, to catch, and to fix an object 
which lies between substance and thin air; 
— to retain the bubble in its act of burst- 
ing. It was, in truth, the very question with 
which Lorenzo de Medici, when descending 
from magnificence to waggery, puzzled, a. d. 
1490, the learned Salviati, and which that 
astute theologian, replying to his patron, 
thought worthy of an entire treatise learn- 
edly composed in the language of scholars, 
and divided into no less than seven parts ; a 
volume yet preserved among the treasures of 
the Laurentian Library at Florence, where, 
during two years that I passed in that beauti- 
ful city, I often resorted to be entertained by 



Roscoe, Life of 

Lorenzo de 

Medici, p. 294, 

10th ed. London, 

1851. 



58 



Shakespeare as a Lawyer. 



The Reporters, 
p. 152, 4th ed. 



its treasures of manuscript lore. " If no man," 
said Lorenzo to his ghostly father, " can effec- 
tually exert himself to obtain eternal happi- 
ness without the special favor of God, and if 
that favor be only granted to those who are 
well disposed towards the reception, I wish 
to know whether the grace of God or the 
good disposition first commences." The so- 
lution which Salviati gave his reverent pupil 
may yet be seen. It was worthy of all that 
Sir Anthony Browne urged against the case 
of Lady Hales, or that any other of the judges 
argued in its behalf. And if the Italian had 
only been dressed in the judicial ermine and 
a wig, instead of in the sacerdotal cassock 
and calotte, he would undoubtedly have ex- 
ceeded every one who " argued." His logic 
and his learning was even superior to theirs. 
William Shakespeare, however, to whom 
the main case — that, we mean, of Hales v. 
Petit — came on for final judgment, placed it 
on grounds not touched by the sergeants or 
the court, and which even the subtle Floren- 
tine does not adumbrate. His argument is, 



Shakespeare as a Lawyer. 



59 



that as the water was running water, and 
came down stream, the unfortunate felo de se 
did not drown himself at all: the water 
drowned him. Here is his view of it : — 

First Clown. It must be se offendendo ; it 
cannot be else. For here lies the point : if I drown 
myself wittingly, it argues an act : and an act hath 
three branches ; it is, to act, to do, to perform : 
argal, she drowned herself wittingly. 

Second Clown. Nay, but hear you, goodman 
delver, — 

First Clown. Give me leave. Here lies the 
water ; good : here stands the man ; good : if the 
man go to this water and drown himself, it is, will 
he, nill he, he goes, — mark you that ; but if the 
water come to him and drown him, he drowns not 
himself: argal, he that is not guilty of his own 
death shortens not his own life. 

Second Clown. But is this law ? 

First Clown. Ay, marry is 't ; crowner's 
quest-law. 

The whole discussion in Plowden must 
submit itself to the superior wisdom of Shake- 
speare's clowns ; especially as evidence still 
preserved would indicate that Sir James did 
not destroy himself at all, but that his death 



6o 



See Foss, Judges 

of England, 

vol. v. p. 373. 



Overseers 

wills. 



Statutes. 



Shakespeare as a Lawyer. 



" was occasioned by his crossing a river over 
a narrow bridge from which he accidentally 
fell and was drowned," at the immature age 
of eighty-five. 

Overseers were frequently added in wills, 
says Malone, from the superabundant cau- 
tion of our ancestors ; but the law acknowl- 
edges no such persons, nor are they (as 
contradistinguished from executors) invested 
with any legal right whatever. In some old 
wills the term overseer is used instead of ex- 
ecutor. 

Thou, Collatine, shalt oversee this will. 

The Rape of Lucrece. 

It is noticeable that Shakespeare, in his own 
will, appoints John Hall, his son-in-law, and 
Susanna, his eldest daughter, executors ; and 
Thomas Hall and Francis Collins overseers. 



In the following sentence, the word 
"statutes" is used in a sense purely tech- 
nical : — 



Shakespeare as a Lawyer. 



This fellow might be in 's time a great buyer 
of land, with his statutes, his recognizances, his 
fines, his double vouchers, his recoveries. — Ham- 
let, Act v. sc. i. 

In Sonnet CXXXIV. the word statute has 
also its legal signification, that of a security 
or obligation for money : — 

The statute of thy beauty thou wilt take. 

The statutes here referred to are not Acts of 
Parliament, but statutes merchant and stat- 
utes staple. Both the statute merchant and 
statute staple are securities for money; the 
one entered into before the chief magistrate 
of some trading town, pursuant to the statute 
1 3 Edw. I. " De Mercatoribus," and thence 
called a statute merchant ; the other pursuant 
to the statute Edw. III. c. 9, before the mayor 
of the staple, that is to say, the grand mart 
for the principal commodities or manufac- 
tures of the kingdom, formerly held by Act 
of Parliament in certain trading towns, from 
whence this security is called a statute staple. 
Thus, in Lilly's "Mother Bombie:" — 



61 



2 Bl. Comm. 160 



62 



" Mother 
Bombie." 



The Family 
of Love." 



"Censura Lit- 

eraria," vol. 

vii. p. 16, ist ed. 



Shakespeare as a Lawyer. 



Half. I 'le enter into a statute marchant to see 
it answered. But if thou wilt have bonds, thou 
shalt have a bushell full. 

Hack. Alas, poore ant ! thou bound in a stat- 
ute marchant ? a browne threed will binde thee fast 
enough : but if you will be content all foure joyntly 
to enter into a bond, I will withdraw the action. — 
Act iv. sc. 2, vol. ii. p. 129, ed. Fairholt. 

In Middleton's " The Family of Love," Glis- 
ter says, — 

Tut, you are master Dryfat the merchant ; your 
skill is greater in cony-skins and wool packs than 
in gentlemen. His lands be in statutes : you mer- 
chants were wont to be merchant staplers ; but now 
gentlemen have gotten up the trade, for there is 
not one gentleman amongst twenty but his land[s] 
be engaged in twenty statutes staple. — Act i. sc. 3, 
vol. ii. p. 123, ed. Dyce. 

In Nash's "Pierce Penilesse," 1592, is this 
passage : — 

I was informed of late daies, that a certayne 
blind retayler called the Divell, used to lend money 
upon pawnes, or any thing, and would let one for a 
need have a thousand poundes upon a statute mer- 
chant of his soule. 



Shakespeare as a Lawyer. 



63 



In the case of recognizances or debts ac- 
knowledged on statutes merchant or statutes 
staple, pursuant to the statutes 13 Edw. I. 
" De Mercatoribus," and 27 Edw. III. c. 9, 
upon forfeiture of these, the body, lands, and 
goods may all be taken at once in execution 
to compel the payment of the debt. The 
process hereon is called an extent, or extendi 
facias, because the sheriff is to cause the 
lands, &c. to be appraised to their full ex- 
tended value before he delivers them to the 
person entitled under a recognizance, &c. 
that it may be certainly known how soon the 
debt will be satisfied. In the old dramatists, 
the word is constantly used in its legal sense. 
Lord Campbell quotes the following passage 
as an example of Shakespeare's " deep techni- 
cal knowledge of the law : " — 



3 Bl. Comm. 419. 



Duke Fred. Well, push him out of doors ; 
And let my officers of such a nature 
Make an extent upon his house and lands. 

As You Like It, Act iii. sc. 1. 

They are usurers, they come yawning for 
money ; and the sheriff with them is come to 



64 



Shakespeare as a Lawyer. 



serve an extent upon your land and then seize on 
your body by force of execution. — The Miseries 
of Inforced Marriage, Act v. Dodsley's Old Plays, 
vol. v. p. 96, ed. 1780. 

Mark me ; widows 
Are long extents in law upon men's livings, 
Upon their bodies' winding-sheets ; they that enjoy 'em 
Lie with but dead men's monuments, and beget 
Only their own ill epitaphs. 

Fletcher's Wit Without Money, Act ii. sc. 2. 

When 
This manor is extended to my use, 
You '11 speak in an humbler key, and sue for favor. 
Massinger's A New Way to Pay Old Debts, Act v. sc. 1. 

Nieces, my land in the country is extended, and my 
goods seiz'd on. — Shadwell's The Virtuoso, Act. v. 
p. 61, ed. 1691. 



Staunton, 
vol. iii. p. 776. 



If that shepherd be not in hand-fast, let him fly. 

The Winter's Tale, Act iv. sc. 3. 

To be in " hand-fast " = mainprize, is to be 
at large on security given. Sometimes this 
state was called handling. Thus, in " The 
London Prodigal," Act iii. sc. 3 : " Ay, but 
he is now in hucster's handling for (i. e. for 



Shakespeare as a Lawyer. 



65 



fear of) running away." Of the writ of main- 
prize nothing is now known in practice. The 
distinction between mainpernors and bail was 
technical and well defined in the time of 
Shakespeare. 



The phrase in " A Midsummer Night's 
Dream," Act i. sc. 1, — 

according to our law 
Immediately provided in that case, 

would stand the test of general professional 
observation at the present day. 



The two great disposing powers of transfer 
of land, in the primitive ages of the common 
law, were Feoffment and Grant. A feoffment 
carried destruction in its course by operating 
upon the possession, without any regard to 
the interest or estate of the feoffer. Thus, 
when Henry IV. says that Richard 
Enfeoffed himself to popularity, 

he means that he gave himself up absolutely 
to popularity. 



Henry IV. Part 
I. Act iii. sc. 2. 



66 



Shakespeare as a Lawyer. 



Owen alias Col- 
lins' s Case, 
Godbolt, pi. 363, 
p. 264. 



History of Eng- 
land, vol. i. ch. 5. 



The practice of using the written examina- 
tions of absent witnesses, instead of their viva 
voce evidence in the presence of the prisoner, 
is alluded to in " Henry the Eighth," Act 
ii. sc. 1, in the passage which gives the ac- 
count of the trial of the Duke of Bucking- 
ham, who was convicted and executed for 
saying, " If the king should arrest him of 
high treason, he would stab the king with 
his dagger." 

The great duke 
Came to the bar ; where to his accusations 
He pleaded still, not guilty, and alleg'd 
Many sharp reasons to defeat the law. 
The king's attorney, on the contrary, 
Urg'd on th' examinations, proofs, confessions 
Of divers witnesses ; which the duke desired 
To have brought viva voce, to his face. 

The evidence of verbal confessions of guilt is 
to be received with great caution. Macaulay 
has expressed this rule in forcible language. 
" Words," says he, " may easily be misunder- 
stood by an honest man. They may easily 
be misconstrued by a knave. What was 
spoken metaphorically may be apprehended 



Shakespeare as a Lawyer. 



seriously. A particle, a tense, a mood, an 
emphasis, may make the whole difference be- 
tween guilt and innocence." 



In " The Merchant of Venice," Antonio's 
bond to Shylock is prepared and talked 
about according to the forms observed in an 
English attorney's office. The distinction is 
observed between a single bond, a simplex 
obligatio, and a bond with a condition. Shy- 
lock says, — 



Go with me to a notary, seal me there 



Your single bond. 



Act i. sc. 3. 



On the forfeiture of a conditional bond, the 
whole penalty, which is usually double the 
principal sum, was recoverable at law. Thus, 
in " Venus and Adonis," — 

Say, for non-payment that the debt should double. 

But here the courts of equity interposed, and 
would not permit a party to take more than 
in conscience he ought. In the famous trial 
in the first scene of the fourth act of " The 



67 



Lord Campbell. 



Bond. 



68 



Shakespeare as a Lawyer. 



Merchant of Venice," Bassanio, counsel for 
the defendant, beseeches the fair judge not to 
maintain this rigid rule of law, inaccessible 
to the dictates and appeal of equity : — 

Bass. And I beseech you, 

Wrest once the law to your authority : 
To do a great right, do a little wrong ; 
And curb this cruel devil of his will. 

Portia. It must not be ; there is no power in Venice 
Can alter a decree established : 
' Twill be recorded for a precedent ; 
And many an error, by the same example, 
Will rush into the State : it cannot be. 



Why, this bond is forfeit ; 
And lawfully by this the Jew may claim 
A pound of flesh, to be by him cut off 
Nearest the merchant's heart. 



In " The Taming of the Shrew/' Induction, 
sc. 2, a servant says to Sly, — 

For though you lay here in this goodly chamber, 
Yet would you say, ye were beaten out of door ; 
And rail upon the hostess of the house ; 
And say, you would present her at the Leet, 
Because she broicght stone jugs and no seaPd quarts. 



Shakespeare as a Lawyer. 



Shakespeare evinces a knowledge of the juris- 
diction of the Court Leet, in his time, the 
lowest court of criminal judicature in Eng- 
land. In this court, parties in the practice of 
using false weights and measures were pre- 
sentable and punishable. The sealed quaris 
were the licensed quart measures, certified by 
stamp to be capable of holding that quantity 
of liquid. Malone cites the following pas- 
sage from Lenton's " Leasures" (1631): — 

He [an informer] transforms himselfe into sev- 
eral shapes, to avoid suspicion of inneholders, and 
inwardly joyes at the sight of ablacke pot or jugge, 
knowing that their sale by sealed quarts spoyles 
his market. 



The Court of Wards was first erected in 
Henry the Eighth's time, and was afterwards 
augmented by him with the office of liveries ; 
hence called the Court of Wards and Liver- 
ies. Under the feudal system, every estate 
was considered as a benefice, which, while the 
heir was a minor, or otherwise incapable of 
serving, reverted to the superior, who ap- 



69 



Court Leet. 



Lenton's 
Leasures.' 



Court of Wards. 



JO Shakespeare as a Lawyer. 

pointed another to perform military service 
in his stead. While this prerogative re- 
mained, the king, as feudal superior, gave or 
sold the wardship of a minor to whomsoever 
he chose, with as much of the income as he 
thought proper. If the heir was a female, the 
king was entitled to offer her any husband of 
her rank, at his option ; and, if she refused 
him, she forfeited her land. 

Shakespeare, who gives to all nations the 
customs of his own, in a passage in " The 
Comedy of Errors,'' Act v. sc. i, alludes to a 
Court of Wards at Ephesus. Adriana ad- 
dresses the duke : — 

May 't please your grace, Antipholus my husband, — 
Who I made lord of me and all I had, 
At your important letters. 

In this passage Shakespeare was thinking 
particularly on the interest which the king in 
England had in the marriage of his wards, — 
an interest which Queen Elizabeth in Shake- 
speare's time exerted on all occasions, as 
did her successors, till the abolition of the 



Shakespeare as a Lawyer. 



7i 



Court of Wards and Liveries by statute 12 
Car. II. 

The Court of Wards was always consid- 
ered as a grievous oppression. The abuse 
above spoken of is distinctly alluded to in 
Ben Jonson's " Bartholomew Fair." Grace 
Wellborn, being asked how she came under 
the guardianship of Justice Overdo, replies, — 

Faith, through a common calamity, he bought 
me, sir ; and now he will marry me to his wife's 
brother, this wise gentleman that you see ; or else 
I must pay value d my land. — Act iii. sc. I, vol. iv. 
p. 459, ed- Gifford. 



" Bartholomew 
Fair." 



See Massinger's 
" The Guard- 
ian," Act i. sc. 

1, vol. iv. p. 

125, ed. Gifford 

(1805). 



Peine forte et dure was a punishment, by 
which a prisoner indicted for felony was com- 
pelled to put himself upon his trial. If, when 
arraigned, he stood mute, he was remanded 
to prison, and placed in a low dark chamber, 
and there laid on his back on the bare floor 
naked, unless when decency forbade ; upon 
his body was placed as great a weight of iron 
as he could bear ; on the first day he received 



Peine forte et 
dure. 



4 Bl. Comm. 325. 

Stephen Hist. 

Crim. Law of 

England, vol. i. 

p. 298. 



72 Shakespeare as a Lawyer. 



no sustenance, save three morsels of the 
worst bread, and on the second day three 
draughts of standing water that should be 
nearest to the prison-door, and such was alter- 
nately his daily diet till he pleaded or died. 
This punishment was vulgarly called pressing 
to death. In " Much Ado About Nothing," 
Act iii. sc. i, Hero says of Beatrice, — 

If I should speak, 
She 'd mock me into air ; O, she would laugh me 
Out of myself, press me to death with wit ! 

In " King Richard II." Act iii. sc. 4, in the 
scene in the garden, the Queen exclaims, " O, 
I am press'd to death through want of speak- 
ing ! " And in " Troilus and Cressida," Act 
iii. sc. 2, Pandarus says to Cressida, " I will 
show you a chamber with a bed ; which bed, 
because it shall not speak of your pretty en- 
counters, press it to death." The Queen and 
Pandarus refer not only to this punishment, 
but also to its cause, namely, "refusing 
to speak," or, "standing mute" or, in the 
Queen's own words, " want of speaking." 



Shakespeare as a Lawyer. 



73 



In Appendix I. to " Year Books," 30 and 
31 Edward I. p. 510, is this case: — 

John de Dorley was arraigned for divers felo- 
nies ; and he stood mute, and would not speak a 
word. The Justice inquired if he was dumb, or if 
he could speak if he chose. The inquest said he 
could speak if he chose. And because he would 
not put himself on the country, or answer, he was 
adjudged to suffer penance ; namely, that he should 
be put in a house on the ground in his shirt, laden 
with as much iron as he could bear, and that he 
should have nothing to drink on the day when he 
had any thing to eat, and that he should drink 
water which came neither from fountain nor river. 
The same penance was adjudged to Sir Ralph 
Bloyho, because he would not put himself on the 
country. 



Year Books, 
30 and 3 1 Edw. I. 



The invitation of Pointz, in " The First 
Part of King Henry IV." Act i. sc. 2, to 
" my lads," to an excursion to Gadshill, which 
was notorious for the robberies committed 
there, recalls a singular case in Leonard, who 
reported decisions contemporaneously with 
Shakespeare, where a Hundred, against 



2 Leonard, 12. 



74 



Taken with the 
manner. 



Cowel, Law 

Diet. s. v. 

"Mainour." 



Year Books, 
30 and 3 1 Edw. I. 



Shakespeare as a Lawyer. 



whom an action had been brought for a rob- 
bery, pleaded " that time out of mind felons 
had used to rob at Gadshill, and so pre- 
scribed." 



The phrase, " taken with the manner," oc- 
curs in Shakespeare. It means to be caught 
in a criminal act ; originally in a theft, with 
the thing stolen in hand. Cowel thus ex- 
plains it : " Mainour, alias manour, alias mei- 
nour, from the French manier, i. e. manu 
tractare : in a legal sense denotes the thing 
that a thief taketh or stealeth ; as to be taken 
with the mainour is to be taken with the thing 
stolen about him." In " Pleas of the Crown 
before Spigurnel, &c." published in Appen- 
dix I. to "Year Books," 30 and 31 Edward 
I. p. 512, is the following case, decided in 
1302: — 

If a thief be taken with the "mainour," with 
oxen or other chattels, and the owner of the chat- 
tels pursue the thief, and the thief abandon the 
oxen or the chattels, and the bailiff of the liberty 



Shakespeare as a Lawyer. 



75 



take them, and assign a day to the owner, and re- 
ceive his proof of ownership of the chattels, and 
deliver to him the chattels (as it happened to the 
sheriff of Cornwall regarding two oxen which were 
delivered in that manner), he shall be charged with 
them, and shall answer to the king. 

The phrase also occurs in the translation of 
the Bible of 161 1 : — 

If any man's wife go aside, and commit a tres- 
pass against him, and a man lie with her carnally, 
and it be hid from the eyes of her husband, and be 
kept close, and she be defiled, and there be no wit- 
ness against her, neither she be taken with the 
manner. — Numb. v. 12, 13. 

In " The First Part of Henry IV." Prince 
Henry exclaims, — 

O villain, thou stolest a cup of sack eighteen 
years ago, and wert taken with the manner. — Act 
ii. sc. 4. 

In " Love's Labour's Lost," Act i. sc. 1, Cos- 
tard quibbles on manner, i.e. the thing stolen, 
and manor, house, where he was arrested. 

Costard. The matter is to me, sir, as concern- 
ing Jaquenetta. The manner of it is, I was taken 
with the manner. 



Bible, 161 1. 



7 6 



Shakespeare as a Lawyer. 



Biron. In what manner ? 

Cost. In manner and form following, sir ; all 
those three: I was seen with her in the manor- 
house, sitting with her upon the form, and taken 
following her into the park ; which, put together, 
is in manner and form following. Now, sir, for the 
manner, — it is the manner of a man to speak to a 
woman : for the form, — in some form. 

The expression, " taken yourself with the 

manner," occurs in the third scene of the 

fourth act of " The Winter's Tale." " With 

the manner " is more proper than " in the 

manner;" and accordingly Latimer writes 

correctly, — 

Even as a theife that is taken, with the maner 
that he steal eth. — Sermons, 1 10. 



Subornation of 
perjury. 



In " Othello," Desdemona says, — 

Beshrew me much, Emilia, 
I was — unhandsome warrior as I am — 
Arraigning his unkindness with my soul ; 
But now I find I had suborn } d the witness, 
And he V indicted falsely. Act iii. sc. 4. 

This is clearly a reference to the crime of 
subornation of perjury, which is an offence 



Shakespeare as a Lawyer. 



at common law, and consists in the procuring 
another to take such a false oath as consti- 
tutes perjury in the principal, or person tak- 
ing it. 



As has already been observed, the grave- 
diggers' scene in Hamlet " is the mine which 
produces the richest legal ore." Lord Camp- 
bell remarks : " These terms of art are all 
used seemingly with a full knowledge of 
their import ; and it would puzzle some prac- 
tising barristers with whom I am acquainted 
to go over the whole seriatim, and to define 
each of them satisfactorily : " — 

Hamlet. There 's another : why might not 
that be the skull of a lawyer ? Where be his quid- 
dets now, his quillets, his cases, his tenures, and his 
tricks ? why does he suffer this rude knave now 
to knock him about the sconce with a dirty shovel, 
and will not tell him of his action of battery ? Hum ! 
This fellow might be in 's time a great buyer of 
land, with his statutes, his recognizances, his fines, 
his double vouchers, his recoveries : is this the fine 
of his fines, and the recovery of his recoveries, to 
have his fine pate full of fine dirt ? will his vouchers 



77 



Hamlet, Act. v. 

sc. I. 

Ante, p. 48. 



Lord Campbell. 



78 



Sonnet XLVI. 



Lord Campbell. 



Shakespeare as a Lawyer. 



vouch him no more of his purchases, and double 
ones too, than the length and breadth of a pair of 
indentures ? The very conveyances of his lands will 
hardly lie in this box ; and must the inheritor him- 
self have no more, ha ? 



Sonnet XLVI. is purely legal both in 
thought and in expression : — 

Mine eye and heart are at a mortal war, 
How to divide the conquest of thy sight ; 
Mine eye my heart thy picture's sight would bar, 
My heart mine eye the freedom of that right. 
My heart doth plead that thou in him dost lie, — 
A closet never pierc'd with crystal eyes, — 
But the defendant doth that plea deny, 
And says in him thy fair appearance lies. 
To cide this title is impannelled 
A quest of thoughts, all tenants to the heart ; 
And by their verdict is determined 
The dear eye's moiety and the dear heart's part : 
As thus, — mine eye's due is thy outward part, 
And my heart's right thy inward love of heart. 



Lord Campbell well observes, that " even 
where Shakespeare is most solemn and sub- 
lime, his sentiments and language seem some- 



Shakespeare as a Lawyer. 



79 



times to take a tinge from his early pursuits ; " 
and cites that splendid passage, in " Measure 
for Measure," where Isabella thus speaks to 
Angelo, the wicked lord deputy : — 



" Measure for 
Measure," 
Act ii. sc. 2. 



Ang. Your brother is a forfeit of the law, 
And you but waste your words. 

Isab. Alas, alas ! 

Why, all the souls that were were forfeit once ; 
And He that might the vantage best have took 
Found out the remedy. How would you be, 
If He, which is the top of judgment, should 
But judge you as you are ? O, think on that ; 
And mercy then will breathe within your lips, 
Like man new-made. Act ii. sc. 2. 



Dante, Purga- 
torio, c. vi. 37. 



With equal beauty and propriety, Queen 
Katharine, looking to the just judgment of 
God, thus addresses the two cardinals : — 



Is this your Christian counsel? out upon ye ! 
Heaven is above all yet ; there sits a jfudge 
That no king can corrupt. 

Henry VIII. Act iii. sc. I. 

A corresponding sentiment is put by Sopho- 
cles with great effect into the mouth of the 
Chorus addressing Electra : — 



Sophocles. 



8o 



Choate. 



Countenance. 



" Every Man out 

of his Humour," 

Act iii. sc. i. 



Shakespeare as a Lawyer. 



Qdpcrei fioi, Odpaei, re/cvov. 
ere fieyas ovpavcp 

Zev<$y o? icfiopa irdvra kcli /cparvvei. 

Elect. 173-5. 

Choate, in an eloquent passage, describing 
" the good judge," who will not respect per- 
sons in judgment, and whose only duty is to 
attend to the " trepidations of the balance," 
says : " If Athens comes there to demand that 
the cup of hemlock be put to the lips of the 
wisest of men ; and he believes that he has 
not corrupted the youth, nor omitted to wor- 
ship the gods of the city, nor introduced new 
divinities of his own, he must deliver him, al- 
though the thunder light on the unterrified 
brow." 



Rosencrantz. Take you me for a sponge, my 
lord ? 

Hamlet. Ay, sir ; that soaks up the king's 
countenance, his rewards, his authorities. — Ham- 
let, Act. iv. sc. 2. 

Sogliardo. You will not serve me, sir, will you ? 

I '11 give you more than countenance. 

Ben Jonson. Every Man Out of his Humour, Act iii. sc. 1. 



Shakespeare as a Lawyer, 



81 



Countenance is a law term from the French 
contenernent, or the Latin conte?iernentum, and 
denotes the credit and reputation which a 
person hath by reason of his freehold ; and 
most commonly what is necessary for his 
support and maintenance, according to his 
condition of life. 



Barrington, 

" Observations 

on the Statutes," 

p. ii, 5th ed. 



Come sit thou here, most learned justicer. 

King Lear, Act iii. sc. 6. 

The most ancient law-books have justicer s 
of the peace as frequently as justices of the 
peace. Thus in Lambard's" " Eirenarcha," 
ed. 1582, p. 4: "And of this it commeth 
that M. Fitzherbert (in his treatise of the 
Justices of the Peace) calleth them Justicers 
(contractly for Justiciars) and not Justices, 
as we commonly, (and not altogether un- 
properly) do name them." 



Justicer. 



" Eirenarcha. 



In Julius Caesar, Act i. sc. 3, Casca 
says : — 

My answer must be made. 



Answer. 



82 



Shakespeare as a Lawyer. 



'' Julius Caesar,' 
p. 114, Claren- 
don Press ed. 



I shall be called to account, and must 

answer as for seditious words. In this legal 

sense " answer " is used in " Henry V." Act ii. 

sc. 2. : — 

Their faults are open : 
Arrest them to the a?iswer of the law. 



Parolles. Sir, for a quart d'ecu he will sell the 
fee-simple of his salvation, the inheritance of it ; 
and cut the entail from all remainders, and a per- 
petual succession for it perpetually. — All's Well 
that Ends Well, Act iv. sc. 3. 

The idea here intended to be conveyed is 
clear; but the legal phraseology is nonsen- 
sical. The reference is to an estate held in 
fee, in tail, and in mortmain. 



" Pray in aid." 



Hanmer. 



A conqueror that will pray in aid for kindness, 
Where he for grace is kneel'd to. 

Antony and Cleopatra, Act. v. sc. 2. 

Praying in aid is a law term used for a peti- 
tion made in a court of justice for the calling 
in of help from another that hath an interest 
in the cause in question. 



Shakespeare as a Lawyer. 



83 



In divine learning, we see how frequent parables 
and tropes are : for it is a rule, that whatsoever 
science is not consonant to pre-suppositions, must 
pray in aid of similitudes. — Bacon, Advancement 
of Learning, II. 17, § 10. 



Bacon. 



In " Twelfth Night," Act iii. sc. 2, Fabian 
says to Sir Toby Belch, — 

I will prove it legitimate, sir, upon the oaths of 
judgment and reason. 

Sir Toby. And they have been grand jury- 
men since before Noah was a sailor. 



Portia addressing Shylock, — 

it appears, by manifest proceeding, 
That indirectly, and directly too, 
Thou hast contriv'd against the very life 
Of the defendant ; and thou hast incurr'd 
The danger formerly by me rehears 'd. 

The Merchant of Venice, Act iv. sc. I. 

" Formerly," says Mr. Wright, " was used in 
legal documents for ' above,' as in the follow- 
ing extract from Sir Robert Hitcham's Will : 
1 And if the said college shall wilfully refuse 



Formerly. 



'The Merchant 

of Venice," 

Clarendon Press 

ed. p. 122. 



84 



Shakespeare as a Lawyer. 



Fine and 
Recovery. 



to perform this my will : Then, I will, that 
this my Devise unto them shall be void ; and 
I do Devise the same unto Emanuel College, 
in Cambridge, in the same manner and form, 
as it is formerly devised unto Pembroke- 
Hall, and to the same Uses, Intents, Trusts, 
and Purposes.'" — Loder, Hist, of Framling- 
ham, p. 207. 



In " The Comedy of Errors," Act ii. sc. 2, 
in the dialogue between Antipholus of Syra- 
cuse and his attendant Dromio, is this pas- 



sage : 



Dro. S. There 's no time for a man to recover 
his hair that grows bald by nature. 

Ant. S. May he not do it by fine and re- 
covery ? 

Dro. S. Yes, to pay a fine for a periwig, and 
recover the lost hair of another man. 



In " The Merry Wives of Windsor," Act 
iv. sc. 2, the merry wives, after Falstaff's 
experiment upon their virtue, indulge in a 



Shakespeare as a Lawyer. 



conversation in which the recondite terms of 
the law of real property are used with techni- 
cal precision. 

Mrs. Ford. What think you ? may we, with 
the warrant of womanhood and the witness of a 
good conscience, pursue him with any further 
revenge ? 

Mrs. Page. The spirit of wantonness is, sure, 
scared out of him : if the devil have him not in fee 
simple, with fine and recovery, he will never, I 
think, in the way of waste, attempt us again. 

" Fee simple, feodum simplex, is that of 
which we are seized in these general words, 
To us and our heirs forever." "Fine and 
recovery " is the strongest assurance known 
to English law ; and " waste " is any spoil or 
destruction in houses, gardens, trees, &c, to 
the prejudice of the heir expectant. 



But I '11 amerce you with so strong a fine, 
That you shall all repent the loss of mine. 

Romeo and Juliet, Act iii. sc I. 

In " Paradise Lost," Bk. i. 609, 610, is the 
expression, " amerced of Heaven," i. e. " pun- 



85 



Warrant. 
Witness. 



Fee simple. 

Cowel Law Diet. 

j. v. "Fee," 

ed. 1727. 

Ritson. 



Waste 



Amerce. 



Paradise Lost. 



86 



Shakespeare as a Lawyer. 



Milton's Poetical 

Works, vol. iii. 

p. 127, ed. 

Masson. 



Rastall. 



ished with the loss of Heaven." The verb 
" to amerce " (noun amercement or amercia- 
ment) is an old law term, meaning " to punish 
by a fine at the discretion of the court," and 
derived from the French phrase a merci. For 
certain offences the penalty was etre mis a 
merci (the Latin equivalent being poni in 
misericordia) ; and a person so punished was 
said to be amercie or amerced. Thus, in a 
passage quoted in Richardson's Dictionary 
from Rastall's " x^bbreviacion of Statutes," 
A. d. 1520: "Then al the articles of every 
hundred shall be delivered to the 12 jurors of 
the countie, and then time shall be appointed 
them to give their verdictes upon pain of the 
king's mercie. And, if they give not their 
verdictes, they shall bee amerced as to the 
justices shall seeme best." 



Bigamy. 



To base declension and loath 'd bigamy. 

Ring Richard III. Act iii. so 7. 

" Bigamy signifies being twice married ; 
but is more justly denominated polygamy, or 



Shakespeare as a Lawyer. 



having a plurality of wives at once. Bigamy, 
according to the canonists, consisted in mar- 
rying two virgins successively, one after 
the death of the other, or once marrying a 
widow." 

In "Romeo and Juliet," Act v. sc. i, the 
Apothecary says : 

Such mortal drugs I have ; but Mantua's law 
Is death to any he that utters them. 

" To utter is a legal phrase often made use 
of in law proceedings and Acts of Parliament, 
and signifies to vend by retail." 



The word " attempt " has a very distinct 
meaning from " intent." An attempt is that 
which, if it had succeeded, would be the 
offence in question. 

The attempt and not the deed 

Confounds us. 

Macbeth, Act ii. sc I. 

The mere intention to commit a crime is 
not criminal. The law will not take notice 



87 



4 Bl. Coram, 163, 
note. 



Utter. 



Reed. 



Attempt. 

Intent. 

Dearsly 
C. C. 538, 551. 



88 



i Hale P. C. 15. 



Dispark. 
Malone. 



Shakespeare as a Lawyer. 



of an intent without an act. " Where there 
is no will to commit an offence, there can be 
no transgression." 

In " Measure for Measure," Act. v. sc. i, 
Isabella, beseeching the Duke, says : — 

My brother had but justice, 
In that he did the thing for which he died : 
For Angelo, 

His act did not o'ertake his bad intent ; 
And must be buried but as an intent 
That perish'd by the way : thoughts are no subjects, 
Intents but merely thoughts. 



In the first scene of the third act of " King 
Richard II.," Bolingbroke says to Bushy and 
Green, you have — 

Dispark 1 d my parks, and fell'd my forest-woods. 

To dispark is a legal term, and signifies to 
divest a park, constituted by royal grant or 
prescription, of its name and character, by 
destroying the enclosures of such a park, and 
also the vert (or whatever bears green leaves, 
whether wood or underwood), and the beasts 
of chase therein, and laying it open. 



Shakespeare as a Lawyer, 



In the third scene of the fourth act of 
" The Taming of the Shrew," Tranio says : — 

My father is here look'd for every day, 
To pass assurance of a dower in marriage 
'Twixt me and one Baptista's daughter here. 

To pass assurance means to make a con- 
veyance or deed. Deeds are by law-writers 
called " The common assurances of the 
realm " because thereby each man's property 
is assured to him. So, in a subsequent 
scene of this act, " they are busied about a 
counterfeit assurance!' 



In " King Henry VIII.," Act ii. sc. 4, 
Queen Katharine says to Wolsey : — 

Therefore I say again, 
I utterly abhor, yea, from my soul 
Refuse you for my judge. 

" These are not mere words of passion, but 
technical terms in the canon law. Detestor 
and Recuso. The former, in the language of 
canonists, signifies no more than ' I protest 
against;' the words are Holinshed's; — and 



89 



To pass assur- 
ance. 



Malone. 



Abhor. 
Refuse. 



Blackstone. 



Malone. 



9Q 



Capable. 



Lord Campbell. 



Determinate. 



Shakespeare as a Lawyer. 



therefore openly protested that she did utterly 
abhor, refotse, and forsake such a judge." 



In " King Lear," Act ii. sc. i, according 
to Lord Campbell, " there is a remarkable 
example of Shakespeare's use of techni- 
cal legal phraseology." Gloucester says to 

Edmund, — 

of my land, 
Loyal and natural boy, I '11 work the means 
lb make thee capable. 

In forensic discussions respecting legitimacy, 
the question is put, whether the individual 
whose status is to be determined is " cap- 
able," i. e. capable of inheriting ; but it is only 
a lawyer who would express the idea of legiti- 
mizing a natural son by simply saying, — 

I '11 work the means 
To make him capable. 



My bonds in thee are all determinate. 

Sonnet LXXXVIL 
So should that beauty which you hold in lease 

Find no determination. 

Sonnet XIII. 



Shakespeare as a Lawyer. 



9i 



" Determinate," determined, ended. The 
term is used in legal conveyances; it is 
always used by lawyers instead of " ended." 



King Richard says to Northumberland: — 

Tell Bolingbroke, — for yond methinks he stands, — 
That every stride he makes upon my land 
Is dangerous treason : he is come to ope 
The purple testament of bleeding war. 

King Richard II Act. iii. sc. 3. 

" I believe," says Steevens, " our author uses 
the word testament in its legal sense. Bo- 
lingbroke is come to open the testament of 
war, that he may peruse what is decreed there 
in his favour," 



Testament. 



Steevens. 



Metaphorical, beyond question, are these 
exquisite lines from Sonnet XXX. : — 

When to the sessions of sweet silent thought 
I summon up remembrance of things past. 

Compare Dryden's noble use of " the last 
assizes " : — 



Dryden. 



92 



Affeer. 
Ritson. 



Cowel, s. v. 
" Affeerers.' 



Shakespeare as a Lawyer. 



The judging God shall close the book of fate, 
And then the last assizes keep, 
For those who wake and those who sleep. 

Elegy on Mrs. Killegrew. 

And these : — 

But be contented ; when that fell arrest 
Without all bail shall carry me away. 

Sonnet LXXIV. 



Addressing Malcolm, Macduff says : — 

Great tyranny, lay thou thy basis sure, 

For goodness dare not check thee ! wear thou thy wrongs, 

Thy title is affeer' d. Macbeth, Act iv. sc. 3. 

" To affeer" says Ritson, himself a lawyer, 
" is to assess, or reduce to certainty. All 
amerciaments are by Magna Charta to be 
affeered by lawful men, sworn to be impartial. 
This is the ordinary practice of a Court Leet, 
with which Shakespeare seems to have been 
intimately acquainted, and where he might 
have occasionally acted as an affeerer? 

" Affeered " is a law term for confirmed. 
Thus in Cow T el's Law Dictionary : " Affeerers 
may probably be derived from the French 



Shakespeare as a Lawyer. 



93 



affier, that is affirmare, confirmare ; and signi- 
fies in the common law such as are appointed 
in Court-Leets, upon oath, to set the fines 
on such as have committed faults arbitrarily 
punishable, and have no express penalty ap- 
pointed by the statute." 



Antonio. So please my lord the duke and all the court 
To quit the fine for one half of his goods, 
I am content ; so he will let me have 
The other half in use, to render it, 
Upon his death, unto the gentleman 
That lately stole his daughter. 

The Merchant of Venice, Act iv. sc. I. 

In use, " That is, in trust for Shylock during 
his life, for the purpose of securing it at his 
death to Lorenzo. Some critics explain in 
use, upon interest — a sense which the phrase 
certainly sometimes bore ; but that interpreta- 
tion is altogether inconsistent, in the present 
passage, with the generosity of Antonio's char- 
acter. In conveyances of land, where it is in- 
tended to give the estate to any person after 
the death of another, it is necessary that 



In use. 



Anon, apud 

Halliwell, fol. ed. 

vol. v. pp. 

443, 444- 



94 Shakespeare as a Lawyer, 



a third person should be possessed of the 
estate, and the use be declared to the one 
after the death of the other ; or the estate 
to the future possessor would be rendered in- 
secure. This is called a conveyance to uses, 
and the party is said to be possessed, or 
rather seised to the use of such an one, or to 
the use that he render or convey the land to 
such an one, which is expressed in law French 
by the terms seisie al use, and in Latin, seisi- 
tus in usum alicujus, viz. A B or C D. This 
latter phrase Shakespeare has rendered with 
all the strictness of a technical conveyancer, 
and has made Antonio desire to have one 
half of Shylock's goods in use, — to render 
it upon his, Shylock's, death, to Lorenzo ; 
which is by no means an unfrequent mode of 
securing a future estate, and in our author's 
time nothing was more common than for A 
to convey to B in usum, or to the use that he 
should on a certain day enfeoff C or convey 
to C. Suppose a gift to A et heredibus suis, 
in usum, quod redderet B ; and we have the 
exact words of Antonio." 



Shakespeare as a Lawyer. 



In " King Lear," Act iii. sc. 5, Cornwall, 
having created Edmund Earl of Gloucester, 
says to him : — 

Seek out where thy father is, that he may be 
ready for our apprehension. 

Edmund. If I find him comforting the king, it 
will stuff his suspicion more fully. 

Lord Campbell writes : " The indictment 
against an accessory after the fact, for treason, 
charges that the accessory ' comforted ' the 
principal traitor after knowledge of the trea- 
son." But there are no accessories in trea- 
son, because of the extreme gravity of the 
crime, and none in misdemeanor, because 
it is not worth while in misdemeanors to 
draw the distinction. Therefore in an in- 
dictment against several for treason or for 
a misdemeanor all are principals. In Hale's 
"Pleas of the Crown" it is said that "If A 
be indicted for treason and B for comforting 
and receiving him, it is true they are all prin- 
cipals," &c. The word has constantly been 
used in its technical sense. In the truce be- 
tween England and Scotland in the reign of 



95 



Comforting. 



Lord Campbell. 



2 Hale P. C. 223 



96 



Shakespeare as a Lawyer. 



Hall, " Richard 
III. " fol. 19 a. 



" Observations 

upon a Libel," 

Life and Letters, 

vol. i. p. 194, 

ed. Spedding. 

See " King 

Lear," 

Clarendon Press 

ed. p. 173. 



Richard III., it is provided that neither of the 
kings " shall maintain, favour, aid or comfort 
any rebel or traitor." And Bacon : " Not 
contented thus to have comforted and assisted 
her Majesty's rebels in England, he procured 
a rebellion in Ireland." 



Juries. 



To pass on. 



Bacon. 



" King Lear," 

Clarendon Press 

ed. p. 177. 



Shakespeare's knowledge of the practical 
administration of the law is shown in the fol- 
lowing quotations from " Measure for Meas- 
ure," and from " King Lear" : — 

The jury, passing on the prisoner's life, 
May in the sworn twelve have a thief or two 
Guiltier than him they try : What 's open made 
To justice, that justice seizes : what knows the law 
That thieves do pass on thieves ? 'T is very pregnant, 
The jewel that we find, we stoop and take 't 
Because we see 't ; but what we do not see 
We tread upon, and never think of it. Act ii. sc. 1. 

" To pass on " that is to determine the guilt 
or innocence of the prisoner. In Spedding's 
Letters and Life of Bacon, vol. ii. p. 283, 
there is a list of " The Names of the Peers 
that passed upon the trial of the two Earls" of 



Shakespeare as a Lawyer. 



97 



Essex and Southampton. " To pass upon ' : 
is sometimes used in the sense of to pass 
sentence. Thus, in " King Lear," Act iii. 
sc. 7, Cornwall commands the attendants to 
bring in the traitor Gloucester, saying, — 

Though well we may not pass upon his life 
Without the form of justice. 

Cf. " King Lear," Act iv. sc. 6 : — 

Lear. A man may see how this world goes 
with no eyes. Look with thine ears : see how 
yond justice rails upon yond simple thief. Hark, 
in thine ear : change places ; and, handy-dandy, 
which is the justice, which is the thief? 



Justices of the 
Peace. 



The language of the court on the trial of 
questions of legitimacy, as reported in the 
Year Books, was sometimes more emphatic 
than decorous. Judge Richell improved upon 
the maxim of civil law in favor of legitimacy 
by making it of still more general applica- 
tion. He says, " For who that bulleth my 
cow, the calf is mine." Perhaps Shakespeare 
intended to immortalize Judge Richell and 



Year Book, 

7 Hen. iv. 9, 13. 

Barony of 

Gardner, lv. 

note. 



9 8 



Shakespeare as a Lawyer. 



his learned brethren, by making them the 
prompters of King John, in the following 
address to Robert Falconbridge : — 

King John. Sirrah, your brother is legitimate, — 
Your father's wife did after wedlock bear him ; 
And if she did play false, the fault was hers ; 
Which fault lies on the hazards of all husbands 
That marry wives. Tell me, how if my brother, 
Who, as you say, took pains to get this son, 
Had of your father claim'd this son for his ? 
In sooth, goodfrie?id, your father might have kept 
This calf, bred from his cow, from all the world ; 
In sooth, he might : then, if he were my brother's, 
My brother might not claim him ; nor your father, 
Being none of his, refuse him : this concludes, — 
My mother's son did get your father's heir ; 
Your father's heir must have your father's land. 

King John, Act i. sc. I. 



i Hale P. C. 
425. 



Commonwealth 
v. Webster, 
5 Cush. 306. 



In Hale's Pleas of the Crown it is said that 
" Murder is a killing of a man ex malitia 
praecogitata." The words " malice afore- 
thought " do not imply deliberation or the 
lapse of considerable time between the mali- 
cious intent to take life and the actual execu- 
tion of that intent, but rather denote purpose 



Shakespeare as a Lawyer. 



99 



and design, in contradistinction to accident 
and mischance. In an indictment for murder 
it is necessary to allege that the act by which 
the death was occasioned was done of " malice 
aforethought," which is the great characteris- 
tic of the crime. In " The Winter's Tale," 
Leontes addressing Camillo says to him : — 

thou mightst bespice a cup, 
To give mine enemy a lasting wink ; 
Which draught to me were cordial. 

Camillo answers : — 

Sir, my lord, 

I could do this, and that with no rash potion, 
But with a lingering dram, that should not work 
Maliciously like poison. Act i. sc. 2. 

" I should suppose," says Barrington, " that 
the word ' maliciously,' in this passage, is 
used in the sense it bears in the common 
forms of indictment for murder." 



Observations on 

the Statutes, 
527 note, 5th ed. 



" Dowry," dos mulieris, otherwise called 
maritagium, or marriage goods, is that which 
the wife brings the husband in marriage. 
This word should not be confounded with 



Dowry. 

132 Mass. 275. 



IOO 

Assurance. 
Specialty. 

Covenant. 



Shakespeare as a Lawyer. 



" assurance " 



the legal evi- 
A 



dower. An "assurance is 
dence of the transfer of property. j\ - spe- 
cialty " is a contract by deed. A " covenant," 
convenant, is an agreement, convention, or 
promise of two or more parties, by deed in 
writing, signed, sealed, and delivered, by 
which either of the parties pledges himself 
to the other that something is either done 
or shall be done, or stipulates for the truth 
of certain facts. 

In the following conversation between 
Petruchio and Baptista, these technical terms 
are used with the precision of an experienced 
conveyancer : — 

Pet. You knew my father well ; and in him, me, 
Left solely heir to all his lands and goods, 
Which I have better'd rather than decreas'd : 
Then tell me, — if I get your daughter's love, 
\Vnat dowry shall I have with her to wife ? 

Bap. After my death, the one half of my lands ; 
And, in possession, twenty thousand crowns. 

Pet. And, for that dowry, I '11 assure her of 
Her widowhood, — be it that she survives me, — 
In all my lands and leases whatsoever : 
Let specialties be therefore drawn between us, 
That covenants may be kept on either hand. 

The Taming of the Shrezc, Act ii. sc. I. 



Shakespeare as a Lawyer. 



101 



Petruchio, in consideration of the marriage 
settlement says, " I '11 assure her of her widow- 
hood," that is, will covenant that Katharina 
shall have her rights of dower, as his widow, 
in " all his lands and leases." 

In all probability, Shakespeare's will was 
written by himself. It is expressed in terms 
at once apt and concise. The intention 
of the testator is abundantly manifest. On 
perusal, one is ready to exclaim with the 
Host in " The Merry Wives of Windsor," — 

Thou art clerkly, thou art clerkly. 

Without professional education and experi- 
ence, the technical language of the law could 
not have been so appropriately used. In the 
interpolated clause making a bequest to his 
wife of personal property, he omits the tech- 
nical word " devise " which he used in dispos- 
ing of his realty, and says " I give," &c. 

Burke, who had been educated for the bar, 
made his own will. His last days were 
clouded by the death of his only child, a son 
of great promise, and he desired to leave to 



Shakespeare's 
Will. 



102 



Burke's Will. 



For a copy of 

this will, see 

Bissetts ' ; Life 

of Burke," vol. 

ii. p. 440, 2d ed. 



Shakespeare as a Lawyer. 



his wife, absolutely, his entire estate, with no 
restrictions upon any part of it. His vocab- 
ulary was copious and famous. Of him it 
was first said, referring to his redundant 
adjectives, what, in our times, has been ap- 
plied to Choate, " He drives a substantive 
and six." With this habit of language, and 
forgetting that he could not possibly accom- 
plish his object so surely as by simply say- 
ing, " To my wife, Jane Mary Burke, and 
Iter heirs" he actually used instead of these 
last three technical words, seventy-one words, 
and then added the following forty-four words 
to clinch the seventy-one : " I hope these 
words are sufficient to express the absolute, 
unconditional, and unlimited right of com- 
plete ownership I mean to give her to the 
said lands and goods; and I trust, that no 
words or surplusage or ambiguity may vitiate 
this my clear intention." This was written 
in August 1794. But in July 1795, he made 
a codicil and devises the same lands over 
again to his " wife, Jane Mary Burke, and 
her heirs forever." 



Shakespeare as a Lawyer. 



10 



We thus have presented to our readers a 
portion of the evidence on the issue, whether 
or not Shakespeare was professionally versed 
in the " nice sharp quillets of the law," 

" And by their verdict [the issue] is determined." 

If the verdict is in the affirmative, it may 
safely be concluded, that neither a motion 
in arrest of judgment nor a writ of error 
will lie. 


























^8 
























^ffi^S 








K* 'fflg 










m 


ppsr^stx 


W^^0 










pifflE 
















^*«--**v 





NOTES. 



22, 1. I. — "Ouster le main is a writ that is 
directed to the escheator, to deliver seisin or 
possession out of the king's hands unto the 
party that sues the writ, for that the lands 
seised are not holden of the king, or for that 
he ought not to have the wardship of them, or 
for that the king's title is determined, &c." 



Termes de la 
Ley. 



22, 1. 1 8. — "Attorney signifies in legal accepta- 
tion, one appointed by another man to do any- 
thing in his stead. Attorney is either general 
or special. Attorney general is he that by 
general authority is appointed to manage all 
our affairs or suits. Attorney special is he 
that is employed in one or more causes par- 
ticularly specified. Attorney is seldom used 
now except of attorney at law." 

In Trench's "Glossary" it is said that 
" attorney " is seldom used now except of the 



io8 



Shakespeare as a Lawyer. 



attorney at law. But formerly, any who in 
any cause acted in the room, behalf, or turn of 
another, would be called his " attorney." And 
the writer cites the passage in the text in 
support of this meaning. 

p. 34, 1. 1 8. — Walker (Critical Examination, &c, 
vol. iii. p. 14) would point "cuckold! wittol ! 
cuckold ! " 



Several. 

Co. Litt. §§ 297, 

298. 



39, 1. 4. — " Also if lands be given to two to 
have and to hold s[everally]." Mr. White's 
conjecture, which he has introduced into the 
text of Littleton, and distinguished by print- 
ing it in brackets, is not supported by author- 
ity. In " Littleton's Tenures in French and 
English," printed in parallel columns, the word 
in both columns is " scil.," which has its com- 
mon and ordinary meaning. Sect. 298 in Coke 
on Littleton (19th ed.) is as follows : " If lands 
be given to two to have and to hold, scil. the 
one moity to the one and to his heires, and 
the other moity to the other and to his heires, 
they are tenants in common." That this is 
the true and only meaning (even if there could 
be a doubt) is evident from the preceding sec- 
tion (§ 297), in which the word " scil." in the 
French column is rendered " viz." in the Eng- 
lish. Co. Litt. § 297 runs thus : " Also, if 



Shakespeare as a Lawyer. 



lands be given to an abbot and a secular man, 
to have and to hold to them, viz. to the abbot 
and his successors, and to the secular man to 
him and to his heires, they have an estate in 
common, causa qua supra." 

p. 42, 1. 2. — In Greene's " Quip for an Upstart 
Courtier," sig. D. 3d ed. 1620, there is a 
graphic description of a sergeant or sheriff's 
officer : " One of them had on a buffe-leather 
jerkin, all greasie before with the droppings 
of beere, that fell from his beard, and by his 
side, a skeine like a brewer's bung knife ; and 
muffled he was in a cloke, turn'd over his 
nose, as though hee had beene ashamed to 
showe his face." Dr. Johnson, in his Diction- 
ary, defines a bum-bailiff as "a bailiff of the 
meanest kind ; one that is employed in ar- 
rests." "It is painful to relate," says Lord 
Macaulay, " that, twice in the course of the 
year which followed the publication of this 
great work [his Dictionary], he was arrested 
and carried to spunging houses, and that he 
was twice indebted for his liberty to his excel- 
lent friend Richardson." 

p. 43, last line. — See also the dialogue between 
Elbow and Lord Escalus, in " Measure for 
Measure," Act ii. sc. 1, as to the forms of 
action. 



109 



Sheriff's officer. 



Johnson. 



Macaulay. 



no 



Statute 
merchant. 



i Howell, 958 ; s. 
c. 1 Phillipps, 21. 



Shakespeare as a Lawyer. 



p. 45, 1. 15. — These words were usual in indict- 
ments in Shakespeare's time (3 Inst. 59) ; and 
they are retained in modern statutes and pre- 
cedents of indictments. 

p. 46, 1. 17. — Beaumont and Fletcher founded 
their play, "The Custom of the Country," 
upon this usage. 

p. 61, 1. 10. — "The mercer, hee followeth the 
young vpstart gentleman, that hath no gouerne- 
ment of himselfe, and he feedeth his humour 
to goe braue : hee shall not want silkes, sattins, 
veluets, to pranke abroad in his pompe ; but 
with this prouiso, that hee must binde ouer his 
land in a statute merchant or staple : and so 
at last forfeit all unto the mercilesse mercer, 
and leaue himselfe neuer a foot of ground in 
England." — Greene, " Quip for an Upstart 
Courtier," sig. F. 3. ed. 1620, quoted by Dyce, 
ed. Middleton, vol. ii. p. 123 note. 

p. 66, 1. 1. — During the trial of the Duke of Nor- 
folk for high treason, in the year 1571, he 
repeatedly requested that the witnesses for 
the crown should be brought " face to face ; " 
and, on hearing the confession of the Bishop 
of Ross read against him says : " it is of good 
ground that I have prayed to have the Bishop 
of Ross brought to me in private examination, 



Shakespeare as a Lawyer, 



in 



face to face, whereby I might have put him in 
remembrance of truth ; but I have not had him 
face to face, nor have been suffered to bring 
forth witnesses, proofs, and arguments as 
might have made for my purgation." 

66, 1. 8. — John Owen alias Collins of Godstow 
in the county of Oxford was indicted and 
arraigned of high treason, for speaking there 
(among others) traitorous English words : " If 
the king be excommunicate by the pope, it 
is lawful for every man to kill him, and it is 
no murder," to which words he pleaded, Not 
guilty. And after the evidence was introduced, 
Cook, Chief Justice, said : " The matter of his 
indictment of treason was, his intent to com- 
pass the king's death. And notwithstanding 
that the words as to this purpose were but 
conditional, viz., ' If he were excommunicate,' 
yet it was treason. For proof of which this 
case was cited. The Duke of Buckingham, 
in the time of King Henry the Eighth said, 
* That if the king should arrest him of high 
treason, that he would stab him with his dag- 
ger;' and it was adjudged a present treason. 
And he said that in point of allegiance none 
must serve the king with Ifs and Ands. And 
afterwards Owen was found guilty, and judg- 
ment of treason was given." 



Owen alias Col- 
lin's case, in the 
King's Bench, 
Godbolt, pi. 363, 
P- 263. 



112 



Shakespeare as a Lawyer. 



Leet. 



C. Elliot Browne 
in "The Athe- 
naeum," 22 May, 

1875- 



Ritson. 



Dante. 



p. 69, 1. 2. — "Leet" also meant a day on which 
this court was held : — 

Keep leets, and law-days, and in session sit. 

Othello, Act iii. sc. 3. 

p. 72, 1. 14. — See the Preface to " The Riverside 
Shakespeare/' vol. i. pp. xxi, xxii. 

p. 77, 1. 14. — There is a striking imitation of this 
passage in Reynolde's " Dolarney's Primrose," 
1606, quoted in the "New Variorum," vol. iii. 
p. 386 note: — 

" Why might not this haue beene some lawier's pate, 

The which sometimes brib'd, brawl'd, and tooke a fee 

And lawe exacted to the highest rate : 

Why might not this be such a one as he ? 

Your quirks and quillets, now Sir, where be they ? 

Now he is mute and not a word can say," &c. 

p. 77, 1. 22. — "A recovery with double voucher is 
the one usually suffered, and is so denomi- 
nated from two persons (the latter of whom is 
always the common cryer, or some such infe- 
rior person) being successively voucher, or 
called upon, to warrant the tenant's title. Both 
fines and recoveries are fictions of law, used 
to convert an estate tail into a fee-simple." 

p. 79, 1. 11. — "If He, which is the top of judgment." 
This expression " occurs in another great poet, 



Shakespeare as a Lawyer. 



ii3 



one whose fame is as imperishable as Shake- 
speare's : " 

Che cima di giudicio non s 1 avvalla, &c. 

Pztrgatorio, c. vi. 37. 

quoted in Dyce's Shakespeare, vol. i. p. 485 
note, 4th ed. 

p. 89, 1. 17. — The name of Mr. Justice Blackstone, 
the author of the " Commentaries," often oc- 
curs in the Third Variorum of 1821. "The 
notes which he gave me on Shakespeare," says 
Malone, " show him to have been a man of 
excellent taste and accuracy, and a good 
critic." 



Blackstone. 

















WsfSmlP^ ^jaS^-t* 


\f#&%s£s?F^0v%'J38i 








INDEX. 


Abhor, 89. 


Case, action on the, distinction, between, and 


Absque hoc, 48. 


an action of trespass, 43. 


Accessories, 95. 


Charge, Dogberry's to the watchmen, 26. 


Affeer, 92. 


Cheaters, 30. 


Affeered, 92. 


Choate, quoted, 80. 


Amerce, 85. 


Coke, on the jurisdiction of justices of the 


Angus v. Dalton, 15. 


peace, 33. 


Answer, 81. 


Coke on Littleton, quoted, 19, 38, 39. 


" As free as tongue can speak or heart can 


Comforting, 94, 95. 


tell," 46, 47. 


Common, 38-40. 


Assurance, 100. 


Commonwealth v. Webster, 


Attainder, 35. 


Contempt, practice in the Court of Queen's 


Attempt, 87. 


Bench, in case of, 24. 


Attorney, 22, meaning of the word, 107. 


Conviction and attainder, 35. 


Attorney-general, 22, 107. 


Countenance, 80, 81. 




Counter, to run, 41, 42. 


Bacon, quoted, 27, 83, 96. 


Court Leet, 68, 69, 112. 


Band, 41. 


Court of Wards and Liveries, 69-71. 


Bible, quotation from Numbers, 75. 


Covenant, 100. 


Bigamy, 86. 


Cuckold, the word not actionable, 34. 


Bond, 67. 


" Custom of the Country, The," no. 


Buckingham, Duke of, account of his trial, 




66. 


Dante, line from " Purgatorio," quoted, 79, 


Bum-bailiff, Dr. Johnson's definition of, 109 ; 


112. 


Greene's description of, in the " Quip for 


De Mercatoribus, the statute, 61, 63. 


an Upstart Courtier," 109. 


Determinate, 90. 


Burke's will, 101, 102. 


Devise, 101. 




Dispark, 88. 


Cade, Jack, 46. 


Dogberry's charge to the watchmen, 26. 


Capable, 90. 


Donne, quotation from, 21. 



1 1 8 Index. 


Dowry, 99. 


Indictment, against Queen Hermione, 44 ; 


Draw dry foot, 41, 42. 


against Lord Say, 45 ; conclusion of, 5 


Dryden, quoted, 91, 92. 


Injuria illata judici seu locum tenenti regis 


Durance. 41. 


videtur ipsi regi illata, &c, 28, 29. 


Dying declarations, 17-19. 


Inne, " to take mine ease in," 15, 16. 




Latent. S7. 


Enfeoffed, 65. 


Inter Christianos non nominanda, 45, no. 


Equity, jurisdiction of courts of. in case of 


Interrogatories; charged upon, 24. 


forfeiture of a conditional bond, 67. 




Escheaters, 30. 


Jonsons, Ben, •• Bartholomew Fair," quo- 


Exceptions. Bill of. 31. 


tation from, 71 : ™ Ever;.- Man out of His 


Extendi facias, 63, 64. 


Humour," quotation from, So. 


Extent, 63, 64. 


Justices, 81. 




Justices of the peace, 32, 33, Si, 97 ; Lord 


Fees, acquitted prisoners dragged back to 


Coke on the jurisdiction of, 33. 


their cells in order to satisfy the fees of 




jailers, 35-37. 


King. The v. Mead. 18. 


Feoffment, 65. 


King, The v. Woodcock, 18. 


Fine and Recovery, S4. 




First Parish in Sudbury v. Jones, 1^. 


Latimer, quotation from, 76. 


Fletcher, quotation from ' : The Woman's 


" Lay by the heels, " 25, 26. 


Prize," 21 ; - Wit Without Money," 64. 


Leet, 68. 


Formerly, 83. 


Lentons " Leasures," quotation from, 69. 


Free socage, 47. 


Leonard, case in, 73. 




Lilly's <; Mother Bombie/' quotation from, 


GadshilL 73. 


62. 


Generes v. CampbelL 3 1 . 


Livery of seisin, 23. 


Grand jury, form of oath administered to, 26. 


'•Livery, to sue out," 21. 


Grant, 65. 


" London Prodigal, The," quotation from, 64. 


Grave-diggers' scene in " Hamlet," 48. 77. 




Greene's " Quip for an Upstart Courtier," 


1 [amour, 74. 


quotations from, 109, no; "Farewell to 


Mainprize, 64. 


Folly," 16. 


Malice aforethought, defined, 9S. 




Maliciously, 99. 


Hales v. Petit, 48. 


Malone, his opinion, that some years of 


Hamlet, speech in the grave-diggers' scene, 


Shakespeare's youth were passed in the 


:~. 


office of an attorney. 1 d . 


Hani-fast, z-. 


" Manner, taken with the," 74-76. 


<• He. which is the top of judgment," 79, 112. 


Massin^er's " A New Way to Pay Old 


• ; Heels, to lav by the," 25, 26. 


Debts," quotation from, 64. 


Hell, 43. 


Mayor of Hereford, case of, 25. 


Herodotus, cited, j.-. 


Mesne process, arrest on. 43. 


Holinshed, quotations from, 20, 23. 


Middleton's "Blurt, Master Constable," 



Index. 119 


quotation from, 42 ; " The Family of 


Sharrod v. Railway Co. 44. 


Love," 62. 


Smith v. Wood, 34. 


Murder, defined, 98. 


Son assault demesne, plea of, 30. 




Sophocles, quotation from " Electra," 80. 


Nash, quotation from "Pierce Penilesse," 


Special pleading, 43. 


62. 


Specialty, 100. 


Norfolk, Duke of, his trial, no. 


Spenser, quotation from " The Faerie 




Queene," 24. 


Ouster le main, 22, 107. 


Star-chamber, jurisdiction of, 16, 17. 


Overseers, added in wills, 60. 


Statute merchant, 60-63. 


Owen alias Collins' s Case, 66, in. 


Statute staple, 60-63. 




Steevens, his account of the life of Shake- 


Pass assurance, 89. 


speare, 9. 


" Pass on, to," 96. 


Subornation of perjury, 76. 


Peine forte et dure, 71, 72. 


Sudbury, First Parish in, v, Jones, 14. 


Perjury, subornation of, 76. 


" Sue out Livery," 21. 


Polygamy, 86. 




Praemunire, 19, 20. 


" Taken with the manner," 74-76. 


" Pray in aid," 82. 


Testament, 91. 


Precedent, 68. 


Traverse, special, 48. 


Prisoners, when acquitted, dragged back to 


Trespass, distinction between an action of, 


prison for the purpose of satisfying the 


and an action of trespass on the case, 43, 44. 


fees of the jailers, 35, 36. 




Purchase, technical meaning of, 27, 28. 


Use, in, 93. 




Utter, 87. 


Quicquid plantatur solo, solo cedit, 15. 






Walt v. Ligertwood, 29. 


Recognizances on statutes merchant and 


Warrant, 85. 


statutes staple, 61, 63. 


Waste, 85. 


Refuse, 89. 


Webster, quotation from " The Devil's Law 


Regina v. Hind, 18. 


Case," 24. 


Riddle v. Welden, 15. 


Wilkes, " The Miseries of Inforced Mar- 


Robe of Durance, 42. 


riage," quotation from, 63, 64. 




Wills, overseers added in, 60. 


Scott v. Shepherd, 44. 


Witness, 85. 


Seven Bishops, The, 36, 37. 


Wittol-cuckold, the word actionable, 34. 


Several, 38-40. 


"Wives should be as free as tongue can 


Severals, 39, 40. 


speak or heart can think," 46, 47. 


Shadwell's " The Virtuoso," quotation from, 




64. 


Year Books, quoted, 47, 53, 97; cases from, 


Shakespeare's will, 101. 


73, 74- 






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